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John  T,  McNicholas,  O.P.,  S.T.Lr. 


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BOSTON  COLLEGE  LIBRARY 
CHESTNUT  HILL.  MASS. 


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1305  Arrlf  Btvett  PjilaMpljia 


v. 


JJtijil  (Dbatat 


FR.  JOSEPHUS  KENNEDY,  O.P.,  S.T.M. 
FR.  AUGUSTINUS  WALDRON,  O.P.,  S.T.Lr. 

25  Februarii , igo8 

Immac.  Concept.  College 
Washington , D.  C. 


imprimi  prrmittitur 

FR.  LAURENTIUS  FRANCISCUS  KEARNEY,  O.  P.,  S.T.M. 


imprimatur 

* PATRITIUS  JOANNES 

Archiep.  Philadelphien. 

Die  25  Februarii  iqo8 


fi  Q /o  z if 

. C ufts 


© 

Copyright,  1908 

Gbe  Dolpbln  press 


45091 


Gkmtent0 


PAGE 

Introduction 5 

The  Text  of  the  Decree  “Ne  Temere”  (Latin  and  English)  ....  7 

Exposition  of  the  Law  : 

Betrothal 15 

Forms  of  Engagement  Contract 17 

Breaking  of  Engagements 21 

Valid  Marriages 22 

Those  who  come  under  the  term  “ Ordinary” 23 

Those  who  come  under  the  term  “ Parish  Priest  ” 24 

The  Status  of  our  Assistant  Priests  and  the  Decree 24 

Valid  Delegation 26 

The  Delegator 26 

The  Delegated  Priest 27 

Forms  for  General  and  for  Particular  Delegation 29 

Delegation  Revoked 30 

Delegation  in  the  United  States 30 

Two  Witnesses  Required 31 

Exceptional  Cases  Under  the  Law 32 

Licit  Marriages 35 

Table  showing  Parish  in  which  Marriage  should  take  place  . 38 

Special  Questions  of  Licit  Marriage  in  the  United  States  . . 38 

The  New  and  Correct  Registration 41 

Notification  Form  for  the  Baptismal  Register 43 

Rulings  of  Bishops  or  Diocesan  Synods  and  the  Law  ....  45 

Matrimonial  Stole-Fees 46 

Those  who  are  Affected  by  the  Law 48 

Mixed  Marriages 50 

Apostolic  Bull  “Provida”  (Latin  and  English) 56 

An  Abstract  of  the  Law  for  the  People 62 

(iii) 


Digitized  by  the  Internet  Archive 
in  2015 


https://archive.org/details/newlegislationonOOcath 


SI}?  Nfiw  Patrimonial  IGamo. 


THE  Sacred  Congregation  of  the  Council,  in  conjunction 
with  the  Pontifical  Commission  appointed  about  four 
years  ago  by  Pius  X for  the  codification  of  Canon 
Law,  issued  on  2 August,  1907,  the  decree  Ne  Temere. 
This  Papal  document  furnishes  new  legislation  on  Betrothal 
and  Marriage.  It  is  perhaps  the  most  important  disci- 
plinary law  published  since  the  Council  of  Trent.  The  de- 
cree is  not  for  one  nation  or  people,  but  for  the  whole 
world.  Cardinal  Gennari  sums  up  its  advantages  as  fol- 
lows:1 First,  it  will  render  easier  for  the  Universal  Church 
the  substantial  form  of  Matrimony;  secondly,  it  will  ob- 
viate many  clandestine  marriages  which  are  so  numerous 
in  many  places;  thirdly,  it  makes  provision  so  that  the 
ecclesiastical  courts  can  determine  without  any  doubt 
whether  there  has  been  a real  engagement  or  not.  On 
one  point  only  does  the  decree  admit  diversity  of  legislation, 
namely,  -regarding  clandestine  mixed  marriages  and  the 
matrimonial  unions  of  heretics  or  schismatics  among  them- 
selves. Germany,  which  now  alone 2 possesses  a dispensation 

’ Breve  Commento  sugli  Sponsali  e sul  Matrimonio. 

’ As  we  are  about  to  go  to  press  (27  February)  we  have  received  a cable- 
gram from  Rome  announcing  that  the  S.  Congregation  has  just  issued  a 
decision  which  determines  that  the  Benedictine  Declaration  is  not  a dis- 
pensation, and  that,  therefore,  the  Provinces  of  New  Orleans,  San  Fran, 
cisco,  with  the  State  of  Utah,  the  Diocese  of  Vincennes,  the  city  of  St- 
Louis,  and  the  places  in  the  archdiocese  known  as  St.  Genevieve,  St. 
Ferdinand  and  St.  Charles,  as  well  as  Kaskasia,  Cahokia,  French  Village, 
Prairie  du  Rocher,  East  St.  Louis,  Centreville  Station,  and  the  rest 
(which  were  hitherto  under  the  terms  of  the  Benedictine  Declaration), 
are  now  on  precisely  the  same  footing,  in  respect  of  the  new  matrimonial 
legislation,  as  the  entire  Catholic  world,  Germany  alone  excepted. 


6 


THE  NEW  MATRIMONIAL  LAWS. 


on  this  point,  will  continue  to  enjoy  the  dispensation  after 
Easter,  1908.  All  nations  or  localities  desiring  a dispensa- 
tion must  make  application  to  the  Holy  See.  The  law  goes 
into  effect  19  April,  1908,  (that  is,  at  midnight  on  Saturday 
preceding  Easter  Sunday). 

The  transmission  of  the  decree  from  the  Sacred  Congre- 
gation to  the  Ordinaries  throughout  the  world  is  to  be 
taken  as  promulgation  of  the  law  for  the  Universal  Church. 
If  particular  dioceses  or  bishops  have  not  received  official 
notice,  this  will  in  no  way  impede  or  retard  the  promulga- 
tion of  the  law  for  such  dioceses.1  All  customs,  no  matter 
how  long  standing  they  may  be,  contrary  to  the  present 
decree,  are  absolutely  abolished.  Careful  note  is  to  be 
made  that  the  decree  furnishes  new  legislation  on  the  form 
only  of  betrothal  or  marriage  ; hence  the  Church’s  laws 
regarding  impediments,  except  clandestinity,  remain  un- 
changed. The  precautions  taken  by  the  decree  may  seem 
to  be  extraordinary ; but  it  is  necessary  that  the  Church 
guard  against  hasty  and  clandestine  marriages,  especially 
in  these  days  when  lax  matrimonial  views,  and  a prostitu- 
tion of  the  sacred  duties  of  marriage,  resulting  in  so  many 
divorces,  have  become  a moral  pestilence. 


1 Breve  Commento  sugli  Sponsali  e sul  Matrimonio. 


01tp  of  tiro  Ham. 


S?rm  of  tip  (Congr^gattott  of 
tip  CfoounL 

THE  Council  of  Trent  (Cap.  I, 
Sess.  XXIV,  de  reform,  mat- 
rim.)  made  prudent  provision  against 
the  rash  celebration  of  secret  mar- 
riages— which  the  Church  of  God  has 
always  deprecated  and  forbidden — 
when  it  decreed  that  “those  who  at- 
tempt to  contract  marriage  otherwise 
than  in  the  presence  of  their  parish 
priest  or  of  another  priest  acting  with 
the  license  of  the  parish  priest  or  of 
the  Ordinary,  and  in  the  presence  of 
two  or  three  witnesses,  become  there- 
by incapable  of  marrying  validly,  since 
the  Council  declares  that  all  such  con- 
tracts are  null  and  void.” 

As  the  Sacred  Council  prescribed, 
however,  that  the  above  decree  should 
be  published  in  every  parish,  and  was 
to  have  force  only  in  those  places  in 
which  it  should  be  promulgated,  it  has 
happened  that  many  places  in  which 
the  publication  has  not  been  made 
have  been  deprived  of  the  benefit  of 
the  Tridentine  law,  and,  being  still 
without  it,  they  continue  to  be  subject 
to  the  doubts  and  inconveniences  of 
the  old  discipline. 

Nor  did  all  difficulty  cease  in  those 
places  where  the  new  law  has  been  in 


Efcrrrlttm  (Enngregatumis 
(EnnriUL 

NE  temere  inirentur  clandestina 
coniugia,  quae  Dei  Ecclesia 
i-ustissimis  de  causis  semper  detestata 
est  atque  prohibuit,  provide  cavit 
Tridentinum  Concilium,  cap.  i,  Sess. 
XXIV  de  reform,  matrim.  edicens: 
“Qui  aliter  quam  praesente  parocho 
vel  alio  sacerdote  de  ipsius  parochi  seu 
Ordinarii  licentia  et  duobus  vel  tribus 
testibus  matrimonium  contrahere  at- 
tentabunt,  eos  Sancta  Synodus  ad  sic 
contrahendum  omnino  inhabiles  red- 
dit,  et  huiusmodi  contractus  irritos  et 
nullos  esse  decernit.” 


Sed  cum  idem  Sacrum  Concilium 
praecepisset,  ut  tale  decretum  publica- 
retur  in  singulis  paroeciis,  nec  vim 
haberet  nisi  iis  in  locis  ubi  esset  pro- 
mulgatum;  accidit  ut  plura  loca,  in 
quibus  publicatio  ilia  facta  non  fuit, 
beneficio  tridentinae  legis  caruerint, 
hodieque  careant,  et  haesitationibus 
atque  incommodis  veteris  disciplinae 
adhuc  obnoxia  maneant. 


Verum  nec  ubi  viguit  nova  lex,  sub- 
lata  est  omnis  difficultas.  Saepe  nam- 


8 


A COMMENTARY  ON 


force.  For  often  there  have  arisen 
grave  doubts  in  deciding  who  is  to  be 
regarded  as  the  parish  priest  before 
whom  a marriage  must  be  celebrated. 
The  canonical  discipline  did  indeed  de- 
cide that  he  is  the  parish  priest  in 
whose  parish  one  or  other  of  the  con- 
tracting parties  has  his  or  her  domicile 
or  quasi-domicile.  But  as  it  is  some- 
times difficult  to  say  whether  a quasi - 
domicile  really  exists  in  a given  case, 
many  marriages  are  exposed  to  the 
danger  of  nullity ; whilst  many  others, 
through  ignorance  or  fraud,  were  ren- 
dered quite  illegitimate  and  void. 

These  deplorable  results  have  oc- 
curred more  frequently  in  our  own 
time  on  account  of  the  greater  facility 
and  celerity  of  communication  between 
different  countries,  no  matter  how 
widely  separated  they  may  be.  Hence, 
in  the  judgment  of  wise  and  learned 
men  it  has  been  deemed  expedient  to 
introduce  some  change  into  the  law, 
regulating  the  form  of  celebrating 
marriage,  and  many  bishops  in  all 
parts  of  the  world,  but  especially  in 
the  more  populous  centres  where  the 
need  of  such  legislation  urges  with 
greater  force,  have  petitioned  the 
Holy  See  to  this  end. 

It  has  been  requested,  also,  by  many 
bishops  in  Europe,  as  well  as  by  others 
in  various  regions,  that  provision  be 
made  to  prevent  the  inconveniences 
arising  from  betrothals,  that  is,  mutual 
promises  of  marriage,  when  privately 
made.  For  experience  has  sufficiently 
shown  the  many  dangers  of  such  es- 
pousals, in  that  they  are  an  incitement 
to  sin  and  the  cause  of  misleading  in- 
experienced girls,  besides  involving 


que  gravis  exstitit  dubitatio  in  decer- 
nenda  persona  parochi,  quo  praesente 
matrimonium  sit  contrahendum.  Sta- 
tuit  quidem  canonica  disciplina,  pro- 
prium  parochum  eum  intelligi  debere, 
cuius  in  paroecia  domicilium  sit,  aut 
quasi  domicilium  alterutrius  contra- 
hentis.  Verum  quia  nonnunquam 
difficile  est  iudicare,  certo  ne  constet 
de  quasi-domicilio,  haud  pauca  matri- 
monia  fuerunt  obiecta  periculo  ne 
nulla  essent;  multa  quoque,  sive  in- 
scitia  hominum  sive  fraude,  illegitima 
prorsus  atque  irrita  deprehensa  sunt. 

Haec  dudum  deplorata,  eo  crebrius 
accidere  nostra  aetate  videmus,  quo 
facilius  ac  celerius  commeatus  cum 
gentibus,  etiam  disiunctissimis,  per- 
ficiuntur.  Quamobrem  sapientibus  vi- 
ris  ac  doctissimis  visum  est  expedire 
ut  mutatio  aliqua  induceretur  in  iure 
circa  fonnam  celebrandi  connubii. 
Complures  etiam  sacrorum  Antistites 
omni  ex  parte  terrarum,  praesertim  e 
celebrioribus  civitatibus,  ubi  gravior 
appareret  necessitas,  supplices  ad  id 
preces  Apostolicae  Sedi  admoverunt. 


Flagitatum  simul  est  ab  Episcopis, 
turn  Europae  plerisque,  turn  aliarum 
regionum,  ut  incommodis  occurrere- 
tur,  quae  ex  sponsalibus,  idest  mutuis 
promissionibus  futuri  matrimonii  pri- 
vatim  initis,  derivantur.  Docuit  enim 
experientia  satis,  quae  secum  pericula 
ferant  eiusmodi  sponsalia:  primum 
quidem  incitamenta  peccandi  causam- 
que  cur  inexpertae  puellae  decipian- 


THE  NEW  MARRIAGE  LEGISLATION. 


subsequent  dissensions  and  endless  dis- 
putes. 

These  circumstances  have  induced 
the  Holy  Father,  Pope  Pius  X,  in  his 
solicitude  for  all  the  churches,  to  ad- 
vise some  modifications  with  the  ob- 
ject of  removing  the  above-mentioned 
difficulties  and  dangers.  Accordingly 
he  committed  to  the  S.  Congregation 
of  the  Council  the  task  of  examining 
into  the  matter  and  of  suggesting  such 
measures  as  it  might  deem  opportune. 

He  was  pleased,  also,  to  ascertain 
the  opinion  of  the  Commission  which 
has  been  appointed  for  the  codification 
of  Canon  Law,  as  well  as  of  the  Car- 
dinals chosen  on  this  special  Commis- 
sion to  prepare  the  new  code.  These 
and  the  S.  Congregation  of  the  Coun- 
cil have  held  for  this  purpose  frequent 
consultations.  Finally,  having  ob- 
tained the  reports  of  these  bodies,  His 
Holiness  ordered  the  Sacred  Congre- 
gation of  the  Council  to  issue  a decree 
embodying  the  new  laws,  approved  by 
himself  on  sure  knowledge  and  after 
mature  deliberation,  by  which  the  dis- 
cipline in  respect  of  engagements  and 
marriage  is  to  be  regulated  for  the 
future,  so  that  the  celebration  of  them 
may  be  carried  out  in  a secure  and 
orderly  manner. 

Pursuant,  therefore,  to  the  Apos- 
tolic mandate  the  S.  Congregation  of 
the  Council  hereby  ordains  and  de- 
crees : 

Engagement  nr  Eetrntljal. 

I.  Only  those  matrimonial  en- 
gagements are  considered  to  be  valid 
and  to  beget  canonical  effects  which 
have  been  made  in  writing,  signed  by 


9 

tur;  postea  dissidia  ac  lites  inextrica- 
biles. 

His  rerum  adiunctis  permotus 
SSmus  D.  N.  Pius  PP.  X pro  ea  quam 
gerit  omnium  Ecclesiarum  sollicitu- 
dine,  cupiens  ad  memorata  damna  et 
pericula  removenda  temperatione  ali- 
qua  uti,  commissit  S.  Congregationi 
Concilii  ut  de  hac  re  videret,  et  quae 
opportuna  aestimaret,  Sibi  proponeret. 

Voluit  etiam  votum  audire  Consilii 
ad  ius  canonicum  in  unum  redigendum 
constituti,  nec  non  Emorum  Cardina- 
lium  qui  pro  eodem  codice  parando 
speciali  commissione  delecti  sunt;  a 
quibus,  quemadmodum  et  a S.  Con- 
gregatione  Concilii,  conventus  in  eum 
finem  saepius  habiti  sunt.  Omnium 
autem  sententiis  obtentis,  SSmus 
Dominus  S.  Congregationi  Concilii 
mandavit,  ut  decretum  ederet  quo 
leges  a Se,  ex  certa  scientia  et  matura 
deliberatione  probatae,  continerentur, 
quibus  sponsalium  et  matrimonii  dis- 
ciplina  in  posterum  regeretur,  eorum- 
que  celebratio  expedita,  certa  atque 
ordinata  fieret. 


In  executionem  itaque  Apostolid 
mandati  S.  Concilii  Congregatio  prae- 
sentibus  litteris  constituit  atque  decer- 
nit  ea  quae  sequuntur. 

I. — Ea  tantum  sponsalia  habentur 
valida  et  canonicos  sortiuntur  effectus, 
quae  contracta  fuerint  per  scripturana 
subsignatam  a partibus  et  vel  a pa- 


10 


A COMMENTARY  ON 


both  the  parties,  and  by  either  the 
parish  priest  or  the  Ordinary  of  the 
place,  or  at  least  by  two  witnesses. 

In  case  one  or  both  of  the  parties  be 
unable  to  write,  this  fact  is  to  be  noted 
in  the  document,  and  another  witness 
is  to  be  secured  to  sign  the  contract  as 
above,  together  with  the  parish  priest 
or  the  Ordinary  of  the  place,  or  the 
two  witnesses. 

II.  By  parish  priest,  as  used  in  the 
present  decree,  is  to  be  understood  not 
only  the  priest  who  legitimately  pre- 
sides over  a parish  that  is  canonically 
erected,  but  also,  in  localities  where 
parishes  are  not  canonically  erected, 
the  priest  to  whom  the  care  of  souls 
has  been  legitimately  entrusted  in  any 
specified  district,  and  who  is  equivalent 
to  a parish  priest ; and  also,  in  missions 
where  the  territory  has  not  yet  been 
perfectly  divided,  every  priest  gen- 
erally deputed  for  the  care  of  souls  in 
any  station  by  the  superior  of  the  mis- 
sion. 

fflarrtagr. 

III.  Only  those  marriages  are 
valid  which  are  contracted  before  the 
parish  priest,  or  the  Ordinary  of  the 
place,  or  a priest  delegated  by  either  of 
these,  and  at  least  two  witnesses,  in 
accordance  with  the  rules  laid  down 
in  the  following  articles,  and  with  the 
exceptions  mentioned  under  VII  and 
VIII. 

IV.  The  parish  priest  and  the  Or- 
dinary of  the  place  validly  assist  at  a 
marriage : 

(i)  from  the  day  on  which  they 
have  taken  possession  of  their  benefice 
or  entered  upon  their  office,  unless 


rocho,  aut  a loci  Ordinario,  vel  saltern 
a duobus  testibus. 

Quod  si  utraque  vel  alterutra  pars 
scribere  nesciat,  id  in  ipsa  scriptura 
adnotetur;  et  alius  testis  addatur,  qui 
cum  parocho,  aut  loci  Ordinario,  vel 
duobus  testibus,  de  quibus  supra, 
scripturam  subsignet. 

II. — Nomine  parochi  hie  et  in  se- 
quentibus  articulis  venit  non  solum 
qui  legitime  praeest  paroeciae  canonice 
erectae;  sed  in  regionibus,  ubi  paroe- 
ciae canonice  erectae  non  sunt,  etiam 
sacerdos  cui  in  aliquo  definito  terri- 
torio  cura  animarum  legitime  com- 
missa  est,  et  parocho  aequiparatur ; et 
in  missionibus,  ubi  territoria  necdum 
perfecte  divisa  sunt,  omnis  sacerdos  a 
missionis  Moderatore  ad  animarum 
curam  in  aliqua  statione  universaliter 
deputatus. 


Sf  iHatrimmun. 

III.  — Ea  tantum  matrimonia  valida 
sunt,  quae  contrahuntur  coram  pa- 
rocho vel  loci  Ordinario  vel  sacerdote 
ab  alterutro  delegato,  et  duobus  saltern 
testibus,  iuxta  tamen  regulas  in  se- 
quentibus  articulis  expresssas,  et  salvis 
exceptionibus  quae  infra  n.  VII  et 
VIII  ponuntur. 

IV.  — Parochus  et  loci  Ordinarius 
valide  matrimonio  adsistunt, 

§ i.°  a die  tantummodo  adeptae 
possessionis  beneficii  vel  initi  officii, 
nisi  publico  decreto  nominatim  fuerint 


1 HE  NEW  MARRIAGE  LEGISLATION. 


I 


they  have  been  by  a public  decree  ex- 
communicated by  name  or  suspended 
from  the  office ; 

(ii)  but  only  within  the  limits  of 
their  territory.  And  in  this  territory 
they  assist  validly  at  marriages  not 
only  of  their  own  subjects,  but  also  of 
outsiders ; 

(iii)  provided,  when  invited  and  re- 
quested, and  not  compelled  by  violence 
or  grave  fear,  they  ask  and  receive  the 
consent  of  the  contracting  parties. 

V.  They  assist  licitly: 

(i)  after  they  have  ascertained,  ac- 
cording to  the  prescribed  forms,  that 
the  contracting  parties  are  free  to 
marry,  and  that  they  have  duly  com- 
plied with  the  conditions  laid  down  by 
the  law; 

(ii)  after  they  have  ascertained, 
moreover,  that  one  of  the  contracting 
parties  has  a domicile,  or  at  least  has 
lived  for  a month  in  the  place  where 
the  marriage  takes  place ; 

(iii)  if  this  condition  be  lacking,  the 
parish  priest  and  the  Ordinary  of  the 
place,  to  assist  licitly  at  a marriage, 
require  the  permission  of  the  parish 
priest  or  the  Ordinary  of  one  of  the 
contracting  parties,  unless  it  be  a case 
of  grave  necessity,  which  excuses 
from  this  requirement. 

(iv)  Except  in  cases  of  necessity,  it 
is  unlawful  for  a parish  priest  to  assist 
at  the  marriage  of  persons  without 
fixed  abode  ( vagos ) until  the  matter 
has  been  duly  reported  to  the  Ordi- 
nary or  to  a priest  delegated  by  him, 
so  as  to  obtain  permission  to  assist  at 
the  marriage. 

(v)  In  every  case  let  it  be  held  as 
the  rule  that  the  marriage  is  to  be  cele- 


excommunicati  vel  ab  officio  suspensi ; 

§ 2.0  intra  limites  dumtaxat  sui  ter- 
ritorii : in  quo  matrimoniis  nedum 
suorum  subditorum,  sed  etiam  non 
subditorum  valide  adsistunt ; 

§3.°  dummodo  invitati  ac  rogati, 
et  neque  vi  neque  metu  gravi  constricti 
requirant  excipiantque  contrahentium 
consensum. 

V. — Licite  autem  adsistunt, 

§ i.°  constito  sibi  legitime  de  libero 
statu  contrahentium,  servatis  de  iure 
servandis ; 


§ 2.0  constito  insuper  de  domicilio, 
vel  saltern  de  menstrua  commoratione 
alterutrius  contrahentis  in  loco  matri- 
monii ; 

§3.°  quod  si  deficiat,  ut  parochus  et 
loci  Ordinarius  licite  matrimonio  ad- 
sint,  indigent  licentia  parochi  vel  Or- 
dinarii  proprii  alterutrius  contrahentis, 
nisi  gravis  intercedat  necessitas,  quae 
ab  ea  excuset. 


§4.°  Quoad  vagos,  extra  casum 
necessitatis  parocho  ne  liceat  eorum 
matrimoniis  adsistere,  nisi  re  ad  Ordi- 
narium  vel  ad  sacerdotem  ab  eo  dele- 
gatum  delata,  licentiam  adsistendi  im- 
petraverit. 

§ 5.0  In  quolibet  autem  casu  pro 
regula  habeatur,  ut  matrimonium 


2 


A COMMENTARY  ON 


brated  before  the  parish  priest  of  the 
bride,  unless  some  just  cause  dispenses 
from  this  rule. 

VI.  The  parish  priest  and  the  Or- 
dinary of  the  place  may  grant  permis- 
sion to  another  priest,  specified  and 
certain,  to  assist  at  marriages  within 
the  limits  of  their  district. 

The  delegated  priest,  in  order  to 
assist  validly  and  licitly,  is  bound  to 
observe  the  limits  of  his  mandate  and 
the  rules  laid  down  above,  in  IV  and 
V,  for  the  parish  priest  and  the  Ordi- 
nary of  the  place. 

VII.  When  danger  of  death  is  im- 
minent, and  where  the  parish  priest,  or 
the  Ordinary  of  the  place,  or  a priest 
delegated  by  either  of  these,  cannot  be 
had,  in  order  to  provide  for  the  relief 
of  conscience,  and  (should  the  case  re- 
quire it)  for  the  legitimation  of  the 
offspring,  a marriage  may  be  contract- 
ed validly  and  licitly  before  any  priest 
and  two  witnesses. 

VIII.  Should  it  happen  that  in 
any  district  the  parish  priest,  or  the 
Ordinary  of  the  place,  or  a priest  dele- 
gated by  either  of  them,  before  whom 
marriage  can  be  celebrated,  is  not  to 
be  had,  and  that  this  condition  of 
affairs  has  lasted  for  a month,  mar- 
riage may  be  validly  and  licitly  en- 
tered upon  by  the  formal  declaration 
of  consent  made  by  the  contracting 
parties  in  the  presence  of  two  wit- 
nesses. 

IX.  (i)  After  the  celebration  of  a 
marriage  the  parish  priest,  or  he  who 
takes  his  place,  is  to  register  at  once 
in  the  book  of  marriages  the  names  of 
the  couple  and  of  the  witnesses,  the 
place  and  day  of  the  celebration  of  the 


coram  sponsae  parocho  celebretur,  nisi 
aliqua  iusta  causa  excuset. 

VI.  — Parochus  et  loci  Ordinarius 
licentiam  concedere  possunt  alio  sacer- 
doti  determinate  ac  certo,  ut  matri- 
moniis  intra  limites  sui  territorii  ad- 
sistat. 

Delegatus  autem,  ut  valide  et  licite 
adsistat,  servare  tenetur  limites  man- 
dati,  et  regulas  pro  parocho  et  loci 
Ordinario  n.  IV  et  V superius  statutas. 

VII.  — Imminente  mortis  periculo, 
ubi  parochus,  vel  loci  Ordinarius,  vel 
sacerdos  ab  alterutro  delegatus,  haberi 
nequeat,  ad  consulendum  conscientiae 
et  (si  casus  ferat)  legitimationi  pro- 
lis,  matrimonium  contrahi  valide  ac 
licite  potest  coram  quolibet  sacerdote 
et  duobus  testibus. 

VIII.  — Si  contingat  ut  in  aliqua 
regione  parochus  locive  Ordinarius, 
aut  sacerdos  ab  eis  delegatus,  coram 
quo  matrimonium  celebrari  queat, 
haberi  non  possit,  eaque  rerum  con- 
ditio a mense  iam  perseveret,  matri- 
monium valide  ac  licite  iniri  potest 
emisso  a sponsis  formali  consensu 
coram  duobus  testibus. 


IX. — § i.°Celebrato  matrimonio, 
parochus,  vel  qui  eius  vices  gerit. 
statim  describat  in  libro  matrimoni- 
orum  nomina  coniugum  ac  testium, 
locum  et  diem  celebrati  matrimonii, 
atque  alia,  iuxta  modum  in  libris 


THE  NEW  MARRIAGE  LEGISLATION. 


marriage,  and  the  other  details,  ac- 
cording to  the  method  prescribed  in 
the  ritual  books  or  by  the  Ordinary. 
This  obligation  holds  likewise  when 
another  priest,  delegated  either  by  the 
parish  priest  himself  or  by  the  Ordi- 
nary, has  assisted  at  the  marriage. 

(ii)  Moreover,  the  parish  priest  is 
to  note  in  the  book  of  baptisms  the 
fact  that  the  married  person  contract- 
ed marriage  on  a certain  day  in  his 
parish.  If  the  married  person  was 
baptised  elsewhere,  the  parish  priest 
who  has  assisted  at  the  marriage  is  to 
send  notice  of  the  marriage,  either  di- 
rectly or  through  the  episcopal  curia, 
to  the  parish  priest  of  the  place  where 
the  person  was  baptized,  in  order  that 
the  marriage  may  be  inscribed  in  the 
book  of  baptisms. 

(iii)  Whenever  a marriage  is  con- 
tracted in  the  manner  described  under 
VII  and  VIII,  the  priest  in  the  former 
case,  the  witnesses  in  the  latter,  are 
bound  conjointly  with  the  contracting 
parties  themselves  to  provide  that  the 
marriage  be  entered  as  soon  as  pos- 
sible in  the  prescribed  registers. 

X.  Parish  priests  who  violate  the 
rules  here  laid  down  are  to  be  punished 
by  their  Ordinaries  according  to  the 
nature  and  gravity  of  their  transgres- 
sion. Moreover,  if  they  assist  at  the 
marriage  of  anybody  in  violation  of 
the  rules  given  under  (ii)  and  (iii)  of 
No.  V,  they  are  not  to  appropriate  the 
stole-fees,  but  must  remit  them  to  the 
parish  priest  of  the  contracting  par- 
ties. 

XI.  (i)  The  above  laws  are  binding 
on  all  persons  baptized  in  the  Catholic 
Church,  and  on  those  who  have  been 


13 

ritualibus  vel  a proprio  Ordinary 
praescriptum ; idque  licet  alius  sacer- 
dos  vel  a se  vel  ab  Ordinario  dele- 
gatus matrimonio  adstiterit. 


§ 2.0  Praeterea  parochus  in  libro 
quoque  baptizatorum  adnotet,  con- 
iugem  tali  die  in  sua  parochia  matri- 
monium  contraxisse.  Quod  si  coniux 
alibi  baptizatus  fuerit,  matrimonii 
parochus  notitiam  initi  contractus  ad 
parochum  baptismi  sive  per  se,  sive 
per  curiam  episcopalem  transmittat,  ut 
matrimonium  in  baptismi  librum  ref- 
eratur. 


§3.°  Quoties  matrimonium  ad  nor- 
mam  n.  VII  aut  VIII  contrahitur,  sa- 
cerdos  in  priori  casu,  testes  in  altero. 
tenentur  in  solidum  cum  contrahenti- 
bus  curare,  ut  initum  coniugium  in 
praescriptis  libris  quam  primum  ad- 
notetur. 

X. — Parochi  qui  heic  hactenus 
praescripta  violaverint,  ab  Ordinariis 
pro  modo  et  gravitate  culpae  punian- 
tur.  Et  insuper  si  alicuius  matrimonio 
adstiterint  contra  praescriptum  § 2*  et 
3*  num.  V,  emolumenta  stolae  sua  ne 
faciant,  sed  proprio  contrahentium 
parocho  remittant. 


XI. — § i.°  Statutis  superius  legi- 
bus  tenentur  omnes  in  catholica 
Ecclesia  baptizati  et  ad  earn  ex  haeresi 


A COMMENTARY  ON 


converted  to  it  from  heresy  or  schism 
(even  when  either  the  latter  or  the 
former  have  fallen  away  afterwards 
from  the  Church),  in  all  cases  of  be- 
trothal or  marriage. 

(ii)  The  same  laws  are  binding,  al- 
so, on  such  Catholics,  if  they  contract 
betrothal  or  marriage  with  non-Cath- 
olics,  baptized  or  unbaptized,  even 
after  a dispensation  has  been  obtained 
from  the  impediment  mixtae  religionis 
or  dispar  it  atis  cidtus ; unless  the  Holy 
See  have  decreed  otherwise  for  some 
particular  place  or  region. 

(iii)  Non-Catholics,  whether  bap- 
tized or  unbaptized,  who  contract 
among  themselves  are  nowhere  bound 
to  observe  the  Catholic  form  of  be- 
trothal or  marriage. 

The  present  decree  is  to  be  held  as 
legitimately  published  and  promulgat- 
ed by  its  transmission  to  the  Ordi- 
naries, and  its  provisions  begin  to 
have  the  force  of  law  from  the  solemn 
feast  of  the  Resurrection  of  our  Lord 
Jesus  Christ,  next  year,  1908. 

Meanwhile  let  all  the  Ordinaries  see 
that  this  decree  be  made  public  as  soon 
as  possible,  and  explained  in  the  parish 
churches  of  their  diocese,  so  that  it 
may  be  known  by  all. 

These  presents  are  to  have  force  by 
the  special  order  of  our  Most  Holy 
Father  Pope  Pius  X,  all  things,  even 
those  worthy  of  special  mention,  to 
the  contrary  notwithstanding. 

Given  at  Rome  on  the  second  day  of 
August,  in  the  year  1907. 

^Vincent,  Card.  Bishop 

of  Palestrina,  Prefect. 

C.  De  Lai,  Secretary. 


aut  schismate  conversi  (licet  sive  hi, 
sive  illi  ab  eadem  postea  defecerint), 
quoties  inter  se  sponsalia  vel  matri- 
monium  ineant. 

§ 2.0  Vigent  quoque  pro  iisdem  de 
quibus  supra  catholicis,  si  cum  acatho- 
licis  sive  baptizatis,  sive  non  baptizatis, 
etiam  post  obtentam  dispensationem 
ab  impedimento  mixtae  religionis  vel 
disparitatis  cultus,  sponsalia  vel  mat- 
rimonium  contrahunt;  nisi  pro  aliquo 
particulari  loco  aut  regione  aliter  a S. 
Sede  sit  statutum. 

§3.°  Acatholici  sive  baptizati  sive 
non  baptizati,  si  inter  se  contrahunt, 
nullibi  ligantur  ad  catholicam  spon- 
salium  vel  matrimonii  formam  servan- 
dam. 

Praesens  decretum  legitime  publica- 
tum  et  promulgatum  habeatur  per  eius 
transmissionem  ad  locorum  Ordi- 
narios;  et  quae  in  eo  disposita  sunt 
ubique  vim  legis  habere  incipiant  a die 
solemni  Paschae  Resurrectionis  D.  N. 
I.  C.  proximi  anni  1908. 

Interim  vero  omnes  locorum  Ordi- 
narii  curent  hoc  decretum  quampri- 
mum  in  vulgus  edi,  et  in  singulis 
suarum  dioecesium  parochialibus  ec- 
clesiis  explicari  ut  ab  omnibus  rite 
cognoscatur. 

Praesentibus  valituris  de  mandato 
speciali  SSmi  D.  N.  Pii  PP.  X,  con- 
trariis  quibuslibet  etiam  peculiari  men- 
tione  dignis  minime  obstantibus. 

Datum  Romae  die  2a  mensis 
Augusti  anni  1907. 

+ViNCENTius  Card.  Ep.  Praenest., 
Praefectus. 

C.  De  Lai,  Secretarius. 


THE  NEW  MARRIAGE  LEGISLATION 


5 


lExpflBtium  of  tip  Haw.' 


THERE  are  three  points  on  which  the  decree  of  the  S.  Con- 
gregation of  the  Council,  published  2 August,  1907,  and 
to  go  into  effect  19  April,  1908,  furnishes  new  legisla- 
tion: First,  betrothal;  secondly,  marriage , under  the  two-fold 
consideration  of  (a)  its  validity  and  (b)  its  licitness;  thirdly, 
the  proper  registration  of  marriages. 

$Etrnrtfal. 

Before  Easter  Sunday  we  had  to  depend  in  most  cases 
upon  the  word  of  the  parties  to  be  married  as  to  whether  or 
not  they  are  really  betrothed.  The  law  formerly  in  force 
recognized  the  contract  of  engagement  without  prescribing 
formalities  which,  if  necessary,  could  furnish  evidence  at  a 
subsequent  period  to  prove  a real  formal  betrothal.  By  the 
new  law  the  Church  will  not  acknowledge  as  canonically 
binding  any  contract  of  betrothal  unless  a written  engagement, 
mutually  made  and  accepted,  and  witnessed  by  authorized  per- 
sons, has  been  entered  into. 

Conditional  betrothal  contracts  are  not  forbidden  by  the 
present  provision.  The  condition,  however,  should  be  ex- 
pressed in  writing  and  duly  signed  and  witnessed;  but  from 
this  conditional  betrothal  and  written  contract  the  obligation 
will  not  arise  until  the  condition  be  fulfilled. 

1 Acta  S.  Sedis,  Vol.  40,  Nov.,  Dec.,  1907; — M.  Leitner,  Die  Verlobungs 
und  Eheschliessungsform  nach  dem  Deckrete  “ Ne  Temere.”  Nebst  einem 
Anhang  uber  die  neue  Ehe-Eingehungsform  in  Deutschland  Konstitution 
“Provida” ; — A.  Devine,  The  Law  of  Christian  Marriage; — J.  Besson, 
De  la  publicity  des  fiangailles  et  du  marriage  d’apres  la  nouvelle  legistation 
canonique,  in  Nouvelle  Revue  Theologique,  November,  1907; — Schmidt, 
Das  neue  Ehegesetz,  in  Pastor  Bonus,  II; — Bockenhoff,  Das  neue  Kirch- 
engesetz  betr.  die  Form  der  Eheschliessung,  in  Strassburger  Diozenblatt, 
December,  1907; — Noldin,  S.  J.,  Decretum  de  Sponsalibus  et  Matrimoniis 
ejusque  Declaratio ; — II  Consulente  Ecclesiastico,  ed.  Lat.  Jan.,  1908, 
(Continued)  ; — Mgr.  Cronin,  in  Rome  (from  14  Sept.  1907)  ; — Card.  Gen- 
nari,  Breve  Commento. 


\6 


A COMMENJ'ARY  ON 


There  is  no  restriction  in  the  new  law  forbidding  the  parties 
to  make  the  betrothal  contract  by  letter.  Even  though  the 
law  requires  that  the  contract  be  “ in  writing  signed  by  both 
the  parties,”  yet  this  will  not  exclude,  I think,  the  parties  from 
authorizing  delegates  ( procurators ) to  sign  the  betrothal  con- 
tract for  them.  Such  a course,  while  it  would  not  render  the 
document  illicit  or  invalid,  should  not  be  adopted  except  for 
serious  reasons  and  unless  precautions  were  taken  which  could 
prove  juridically  that  a delegate  was  authorized  to  sign  the  be- 
trothal contract.  Should  the  party  or  parties  wishing  to  make 
this  betrothal  contract  revoke  the  consent  before  the  delegate 
had  signed  the  document,  the  contract  would  thereby  be  null 
and  void.  If  it  were  impossible  to  prove  “ in  foro  externo  ” 
this  withdrawal,  the  contract  would  be  valid  “ in  foro  externo.” 

An  important  question  for  pastors  and  Ordinaries  to  con- 
sider is  the  advisability  of  insisting  on  the  written  betrothal 
contract.  The  eminent  jurist,  the  Hon.  Judge  Robinson  of 
the  Catholic  University,  who  has  given  the  subject  long  years 
of  the  most  careful  study,  is  of  the  opinion  that  nine-tenths 
of  the  divorces  in  the  United  States  are  due  to  hasty  marriages. 
It  is  his  opinion  that  it  would  be  advisable  to  encourage  the 
parties  to  make  the  written  betrothal  contract  for  one  year 
prior  to  their  marriage.  Confessors  of  course  know  that  in 
many  instances  an  engagement  of  such  long  standing  would 
be  inadvisable. 

While  the  Catholic  Church  has  not  to  deal  with  the  question 
of  divorces,  she  has  the  serious  problem  of  many  unhappy 
marriages,  which,  in  the  opinion  of  the  authority  just  quoted, 
are  mostly  due  to  hasty  alliances.  This  is  certainly  the  case  in 
mixed  marriages.  Undoubtedly  the  written  betrothal  con- 
tract will  facilitate  the  discovery  of  any  matrimonial  impedi- 
ments,— will  make  it  easier  for  friends  and  parents  to  prevent 
undesirable  unions ; and,  if  pastors  and  Ordinaries  deem  it  ad- 
visable to  recommend  that  a definite  period,  say  three  or  six 
months,  or  a year,  elapse  between  the  engagement  and  the 
marriage,  we  shall  certainly  have  fewer  hasty  matrimonial 
unions. 


THE  NEW  MARRIAGE  LEGISLATION. 


17 


It  is  to  be  noted  that  there  is  no  obligation  on  parties  about 
to  be  married  of  entering  into  this  formal  engagement.2 
Should  prospective  husband  and  wife  wish  to  so  bind  them- 
selves before  their  marriage,  they  should  subscribe  to  a for- 
mula similar  to  the  one  given.  It  would  seem  advisable  for 
all  pastors  to  have  printed  formulas  of  the  prenuptial  contract, 
rather  than  draw  up  one  at  each  request,  for  it  is  more  than 
probable  that  our  people  will  not  draw  up  and  sign  this  con- 
tract without  consulting  the  priests  of  the  parish.  The  law 
requires  that  the  Ordinary  or  the  parish  priest  or  two  lay 
witnesses  sign  the  prenuptial  contract.  When  the  parties  are 
illiterate  a third  witness  must  be  added.  The  law  is  made 
clear  by  the  following  suggested  forms. 


SUGGESTED  FORMS. 

I.  WHEN  THE  BISHOP  (ORDINARY)  WITNESSES. 


We,  the  undersigned,  being  of  sound  mind  and  possessing  suf- 
ficient knowledge  of  the  obligations  to  be  assumed,  do  hereby, 
freely  and  unsolicited,  mutually  promise  to  enter  into  Holy 
Matrimony  before  the  10 th  day  of  December,  1908. 

In  testimony  whereof,  we  affix  our  signatures  on  this  the 
5 th  day  of  Jwie,  1908. 

James  M.  Smith , of 

L * S Mary  R.  King,  of  - — — — 

Witness:  ^ John  R.,  Bp.  of . 


2 The  writer  wishes  to  make  due  acknowledgment  to  the  eminent  jurist 
Professor  W.  C.  Robinson,  dean  of  the  Faculty  of  Law  at  the  Catholic 
University,  through  whose  courtesy  and  favor  he  states  that  “ this  con- 
tract cannot  be  enforced  in  the  Civil  Courts,  but  would  furnish  good 
grounds  for  a breach  of  promise  suit.  The  State  cannot  compel  the  per- 
formance of  a contract  by  which  an  individual  binds  his  future  acts, 
but  if  A and  B enter  into  a contract,  and  B fails  in  the  execution  of 
his  part  of  the  agreement,  then  A can  bring  suit  against  B for  in- 
demnification. The  State  recognizes  the  power  of  parties  to  bind  their 
future  acts  by  a marriage  contract,  not  because  marriage  is  a mere  con- 
tract, but  because  the  State  regards  marriage  as  a status  into  which  all 
are  admitted  who  are  legally  married.  Further,  the  State  permits  no 
such  status  to  be  created  by  any  power  other  than  itself,  and  recognizes 
no  church  organization,  or  society,  or  individuals  as  capable  of  making 
or  unmaking  said  status.  This  prenuptial  contract  the  State  will  recognize 
as  it  will  recognize  any  other  contract  legally  made  by  individuals,  but 
will  not  enforce  such  contract  by  obliging  individuals  to  enter  the 
matrimonial  status  created  by  the  State." 


i8 


A COMMENTARY  ON 


2.  WHEN  THE  PARISH  PRIEST  WITNESSES. 

frdNwfofr^frfr 

ft  ft 

We,  the  undersigned,  being  of  sound  mind  and  possessing  suf-  ft 
ficien't  knowledge  of  the  obligations  to  be  assumed,  do  hereby,  J 
freely  and  unsolicited,  mutually  promise  to  enter  into  Holy  ft 
Matrimony  before  the  io th  day  of  December,  1908. 

In  testimony  whereof,  we  affix  our  signatures  on  this  the 
5 th  day  of  June,  1908. 

James  M.  Smith , of  

L * S Mary  R.  King,  of  


Witness:  Wm.  J.Stanson,  Parish  Priest  of  St.  Peter's  Church, - 


3.  IN  THE  CASE  OF  LAY  WITNESSES. 


^ipipi^ty'to’SFipipipipip'ip’Sp’Sp’Si:' 

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ft 
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ft 
ft 
ft 
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sj?  ip  # :£■  ip  ip  •£  ip + '£ ip ip  ip * ip  ip  ip  ^ :!?  ip  ip  '£  £ ip  4?  ip  ft 

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We,  the  undersigned,  being  of  sound  mind  and  possessing  suf- 
ficient knowledge  of  the  obligations  to  be  assumed,  do  hereby, 
freely  and  unsolicited,  mutually  promise  to  enter  into  Holy 
Matrimony  before  the  10 th  day  of  December,  1908. 

In  testimony  whereof,  we  affix  our  signatures  on  this  the 
5 th  day  of  June,  1908. 

James  M.  Smith,  of 

Mary  R.  King,  of 

/ Richard  M.  Philipps , 

\ James  M.  Burns,  


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Witnesses: 


4.  BISHOP  OR  PARISH  PRIEST  AS  WITNESS,  WHEN  ONE  COR  BOTH) 
OF  THE  PARTIES  IS  ILLITERATE. 

Extra  witness  is  necessary. 

%i:ipipiprfcip&ipipipipip%ipipipipipipipipipipipipipipipipipipipipipipipipipipipipipipipipipip 

We,  the  undersigned,  being  of  sound  mind  and  possessing  suf- 
ficient knowledge  of  the  obligations  to  be  assumed,  do  hereby, 
freely  and  unsolicited,  mutually  promise  to  enter  into  Holy 
Matrimony  before  the  10 th  day  of  December,  1908. 

In  testimony  whereof,  we  affix  our  signatures  on  this  the 
5 th  day  of  June,  1908. 

his+  mark  James  M.  Brown , of 

L * S Mary  R.  King,  of 

Witnesses : 

►J*  John  R.,  Bp.  of 


(or  Wm.J.  Stanson,  Parish  Priest)  ft 

Richard  M.  Philipps  (Extra  Witness).  ft 

ft 


7 HE  NEW  MARRIAGE  LEGISLATION 


l9 


THE  PARTIES  IS 


5.  EAY  WITNESSES,  WHEN  ONE  (OR  BOTH)  OP 

illiterate. 

Three  witnesses  are  necessary. 

f We,  the  undersigned,  being  of  sound  mind  and  possessing  suf- 
J?  ficient  knowledge  of  the  obligations  to  be  assumed,  do  hereby, 
5 freely  and  unsolicited,  mutually  promise  to  enter  into  Holy 
f Matrimony  before  the  10 th  day  of  December,  1908. 

$ In  testimony  whereof,  we  affix  our  signatures  on  this  the 

4fr  5 th  day  of  June,  1908. 

4* 

4* 

f;  Witnesses : 


his-f-  mark 


James  M.  Brown,  of 

Mary  R.  King,  of  


Rich . M.  Philipps,  of- 
James  N.  Jones,  of 
Philip  T.  Maher,  o£- 


* 

& 
f 

& 

Any  one  of  the  above  formulas  would  make  the  engagement  contract 
valid  and  binding. 


If  a priest  is  to  sign  the  contract,  ordinarily  it  should  be  the 
pastor  of  the  prospective  bride;  but  the  signature  of  the  pas- 
tor of  either  party  will  make  the  contract  valid. 

It  is  interesting  for  us  to  inquire  whether  unwritten  promises 
of  marriage  will  be  binding  in  conscience  after  Easter  1908? 
We  have  an  explicit  negative  response  from  the  S.  Congrega- 
tion, and  the  eminent  Cardinal  Gennari  assures  us  that  these 
will  carry  with  them  no  obligation.3  As  the  marriage  con- 
tract, among  Christians,  is  identical  with  the  sacrament,  so 
now  the  Church  decrees  that  every  prenuptial  contract,  among 
those  of  her  children  whom  she  wishes  to  bind,  is  no  contract 
at  all  unless  it  be  made  in  writing  and  duly  attested.  Hence 
confessors  need  not  trouble  themselves  about  verbal  promises. 

The  new  conditions  for  engagement  are  prescribed  only 
when  the  contract  is  bilateral;  hence  if  John  Brown  promises 
and  binds  himself  orally  to  marry  Catharine  Breen,  while  the 
latter  holds  herself  uncommitted  and  free  to  engage  herself 
or  not,  we  have  what  appears  at  first  sight  the  anomaly  that 
John  is  bound  by  the  contract  while  Catharine  is  under  no 
obligation.  The  reason  is  simple,  namely,  the  Church,  on  the 

3 S.  C.  Neg.  Eccl.  Extra.,  1 January,  1900;  Acta  S.  S .,  Vol.  34,  p.  398. 
“ Breve  Commento  della  Nuova  Legge  sugli  Sponsali  e sul  Matrimonio.” 
Rome,  Mgr.  Cronin,  D.  D. 


20 


A COMMENTARY  ON 


point  of  the  new  legislation  here  under  discussion,  is  legislating 
only  on  sponsalia  and  she  has  made  no  conditions  or  restric- 
tions consequently  for  unilateral  contracts,  which  are  not 
sponsalia. 

It  is  to  be  further  noted  that  what  would  render  an  engage- 
ment invalid  or  illicit  under  the  present  law  will  likewise  make 
it  null  and  void  or  illicit  after  Easter.  Thus  a man  becoming 
engaged  under  conditions  that  would  render  his  subsequent 
marriage  invalid  or  sinful  would  not  be  really  engaged;  for 
example,  a man  who  had  not  approached  the  Sacraments  at 
Eastertime,  promising  to  marry  with  the  distinct  proviso  of  not 
putting  himself  in  the  state  of  grace  for  his  marriage,  could 
not  be  held  to  a promise  the  fulfilment  of  which  would  be  a 
sacrilege.  Again,  a Catholic  man,  for  instance,  wishes  to  marry 
a Methodist  woman.  The  latter  is  bigoted  and  under  no  con- 
sideration will  she  consent  to  be  married  by  a priest.  They 
become  engaged,  even  subscribe  to  the  above  formula  of  en- 
gagement and  have  the  same  witnessed  by  two  friends,  under 
the  condition,  however,  that  the  marriage  take  place  before  a 
Methodist  minister.  Unless  some  modification  in  the  new 
decree  be  made,  the  aforesaid  engagement  would  be  invalid, 
for  one  cannot  bind  himself  to  commit  a sacrilege  or  subject 
the  Sacrament  of  Matrimony  to  nullity. 

It  may  be  asked  whether  the  Ordinary,  for  the  diocese, 
and  the  pastor  (or“parochus  in  ordine  ad  matrimonium  ”) 
within  the  limits  of  his  parish,  can  delegate  any  priest  to 
sign  the  Engagement  Contract.  The  question  is  a dis- 
puted one,  and  therefore,  until  the  Sacred  Congregation 
decides  it,  a doubtful  course  in  such  an  important  matter 
should  not  be  adopted  by  delegating  any  priest  to  sign  the 
contract.  If  two  lay  witnesses  sign  the  betrothal  certifi- 
cate the  engagement  will  be  as  valid  as  if  the  Ordinary  or 
parish  priest  witnessed  it.  Since  then  the  law  makes  pro- 
vision for  two  lay  witnesses,  in  the  absence  of  the  Ordi- 
nary or  parish  priest,  there  is  no  necessity  to  delegate 
another  priest,  until  Rome  decides  the  point. 4 

4 Such  is  the  opinion  of  Monsignor  Cronin,  Rome , 26  October,  p.  199,  in 


THE  NEW  MARRIAGE  LEGISLATION 


21 


A delicate  question,  but  one  of  importance  to  confessors, 
may  arise  from  the  fact  that  the  solemnity  attached  to  the 
engagement  contract  may  in  particular  cases  beget  wrong 
notions  in  the  mind  of  the  contracting  parties.  When 
confessors  entertain  such  a fear,  they  must  use  great  pru- 
dence in  making  it  clear  to  their  penitents  that  this  solemn 
betrothal  contract  grants  them  no  matrimonial  liberties. 

In  the  case  of  foreigners  who  have  not  heard  the  decree 
explained  in  their  own  country  and  language,  there  is 
danger  of  them  mistaking  the  written  betrothal  contract 
for  the  marriage  ceremony. 

breaking  Engagr meats. 

From  the  fact  that  the  written  form  of  betrothal  is  the  only 
one  that  will  henceforth  be  recognized,  it  must  not  be  con- 
cluded that  such  an  engagement  may  not  be  validly  and  licitly 
dissolved.  The  reasons  which  moralists  and  canonists  have 
enumerated  as  grounds  for  the  dissolution  of  the  unwritten 
matrimonial  engagement  hold  likewise  for  the  written  be- 
trothal contract.  These  reasons  grant  freedom  either  to  both 
of  the  parties  or  to  one  of  them,  as  may  be  seen  by  consulting 
approved  authors.  Among  others  the  following  may  be 
mentioned:  Gasparri  ( De  Matrimonio^  I,  n.  72,  p.  45,  ed. 
1900)  ; Wernz  ( De  Matrimonio,  n.  no,  p.  164) ; De  Becker 
( De  Sponsalibus  et  Matrimonio,  p.  18,  ed.  1896) ; Tanquerey 
( Syn . Theol.  Mor.  et  Past.,  n.  961,  p.  581);  Marc  ( Institu- 
tions Morales,  II,  n.  1956,  p.  438,  ed.  1902) ; Noldin  ( Summa 
Theol.  Mor.,  De  Sacramentis,  n.  545,  p.  615,  ed.  sexta,  1906). 

his  learned  commentary  on  the  decree.  He  confirms  his  opinion  by  the 
authority  of  Monsignor  Sebastianelli,  a member  of  the  Commission  for  the 
Codification  of  the  Canon  Law. 


22 


A COMMENTARY  ON 


Halid  fHarriagefi. 

We  must  keep  in  mind  the  prescriptions  explicitly  contained 
in  the  decree  together  with  the  Church’s  laws  which  have  not 
been  changed  or  modified  by  the  “ Ne  Temere.”  Both  to- 
gether will  be  the  actual  legislation  governing  the  validity  of 
marriage. 

In  order  that  a marriage  be  valid,  the  ceremony  must  be 
performed  by  the  Ordinary  or  the  parish  priest,  or  by  a priest 
delegated  by  either  of  these,  in  the  presence  of  two  witnesses. 

The  Ordinary  and  the  parish  priest  must  observe  the  fol- 
lowing five  essential  conditions  before  they  can  validly  per- 
form a marriage  ceremony  or  validly  delegate  a priest  to  assist 
at  a marriage : 

1.  The  Ordinary  or  the  parish  priest  must  have  actually 
taken  possession  of  his  see  or  office  or  parish,  or  have 
taken  up  the  duties  of  one  having  the  “ cura  ani- 
marum.” 

2.  The  Ordinary  or  parish  priest  must  not  be  suspended 
or  excommunicated  by  name. 

3.  The  Ordinary  and  the  parish  priest  in  any  part  of  the 
world  can  witness  validly  all  marriages  within  the 
limits  only  of  their  own  jurisdiction.  Outside  their 
own  territory,  they  cannot  assist  validly  even  at  the 
marriage  of  their  own  subjects,  without  due  authoriza- 
tion. 

4.  The  Ordinary  or  the  parish  priest  must  be  asked  and 
invited  to  perform  the  marriage  ceremony;  that  is,  they 
must  be  willing  official  witnesses  for  the  Church. 
Violence,  constraint,  force,  or  grave  fear  would  render 
marriage  invalid. 

5.  The  Ordinary  or  the  parish  priest  must  receive  and  ask 
consent  of  the  contracting  parties.  The  mere  de- 
claration of  marriage  by  the  parties  would  be  no 
marriage  at  all.5 


5 Gennari,  Breve  Commento. 


THE  NEW  MARRIAGE  LEGISLATION. 


23 


£be  ©rt>fnar£. 

By  Ordinary  is  meant : first,  the  Supreme  Pontiff.  Need- 
less to  say,  his  jurisdiction  is  universal,  and  he  can  of  his  own 
authority  change  or  dispense  with  all  legislation  purely  ec- 
clesiastical. He  can  delegate  any  priest  or  bishop  to  witness 
marriages  in  all  parts  of  the  world.  Secondly,  very  probably 
the  Most  Reverend  Apostolic  Delegate , Archbishop  Falconio, 
can  validly  marry  everywhere  in  the  United  States  any  parties, 
no  matter  from  what  country  they  come.  Thirdly,  the  Metro- 
politan within  his  own  archdiocese  can  witness  all  marriages. 
Further,  the  Metropolitan  (a)  when  actually  making  a canoni- 
cal visitation  of  a suffragan’s  diocese  in  the  cases  specified 
“ de  jure  ” can  validly  and  licitly  witness  all  marriages  within 
the  suffragan’s  jurisdiction,  (b)  When  an  appeal  has  been 
made  from  the  judicial  sentence  of  the  bishop  to  that  of  the 
metropolitan  court,  and  when  the  archbishop’s  sentence  revers- 
ing that  of  the  bishop  has  been  accepted  as  a final  settlement 
of  the  case,  the  Metropolitan  can,  for  "that  particular  case, 
witness  the  marriage  or  delegate  any  priest  to  perform  the 
marriage  ceremony  within  the  territory  of  the  suffragan’s 
jurisdiction.  Should  the  suffragan  bishop  appeal  to  the  Apos- 
tolic Delegate  or  to  the  Holy  See,  the  Metropolitan  acquires 
no  jurisdiction  in  this  case.6  According  to  present  discipline, 
these  two  cases  will  be  of  the  rarest  occurrence.  Fourthly,  the 
Bishop  within  the  limits  of  his  diocese,  may  witness  all  mar- 
riages. Fifthly,  Vicars  General  can  witness  all  marriages 
within  the  diocese,  and  this  without  the  special  delegation  of 
the  Bishop.7  Sixthly,  Apostolic  Administrators,  Vicars  and 
Prefects  Apostolic , as  well  as  Abbots  who  within  their  juris- 
diction have  lay  subjects  who  are  under  no  bishop,  are  in- 
cluded under  the  term  of  Ordinary.  All  who  are  mentioned 
within  the  above  six  categories  can  delegate  any  priest  to 
witness  all  marriages  everywhere  within  the  limits  of  their 
jurisdiction. 

8 Gasparri,  II,  n.  935,  pp.  137-8,  ed.  1900;  Wernz,  p.  271,  n.  176,  nota  178. 

7 Gasparri,  ibid.,  936. 


A COMMENTARY  ON 


^4 

Gbe  iparlsb  priest. 

The  parish  priest  must  observe  the  five  conditions  laid  down 
above  for  the  Ordinary  before  he  can  validly  assist  at  a mar- 
riage or  before  he  can  validly  delegate  another  priest  to  do  so. 

By  parish  priest  in  the  decree  “ Ne  Temere  ” is  meant,  not 
only  the  “ parochus  ” in  the  full  canonical  sense,  or  the  terri- 
torial parish  priest,  but  also,  first,  our  irremovable  rectors; 
secondly,  regularly  appointed  pastors  “ ad  nutum  Ordinarii ;” 
thirdly,  pastors  pro  tem.  in  any  parish ; fourthly,  pastors  of  mis- 
sions ; 8 fifthly,  missionaries  assigned  by  bishops  to  care  as 
best  they  can  for  the  scattered  flocks  in  districts  of  the  United 
States  where  there  are  no  parishes;  sixthly,  assistant  priests 
to  whom  the  pastor  has  entrusted  the  entire  care  of  the  parish 
during  the  latter’s  absence,9  even  though  the  pastor  made  no 
mention  of  any  delegation  to  witness  marriages ; 10  seventhly, 
an  assistant  priest  in  a parish  where  the  pastor  is  ill,  or  in- 
capacitated on  account  of  old  age.  Such  an  assistant  is  there- 
by authorized,  while  these  conditions  last,  to  witness  mar- 
riages.11 The  aforesaid  priests  who  by  the  terms  of  the  de- 
cree are  parish  priests  “ in  ordine  ad  matrimonium  ” can  dele- 
gate other  priests  for  their  (i.  e.  the  delegating  priests’) 
parishes  and  districts.12 

Ssslstant  fl>riest5. 

An  important  question  for  us  is  the  determination  of  the 
status  of  our  assistant  priests.  A priori  it  would  seem  desir- 
able to  have  uniformity  of  legislation  for  the  whole  country. 
This,  however,  is  a question  for  our  bishops  and  pastors  to 
settle.  They  can,  if  they  wish,  make  all  assistants  “ parochi  in 

8 Pastors  who  have  a mission  or  missions  attached  to  their  church,  are 
considered  “ parochi  in  ordine  ad  matrimonium  ” for  said  mission  or 
missions. 

0 Gasparri,  II,  n.  910,  p.  114,  ed.  1900. 

10  If  no  delegation  be  granted  by  the  Ordinary  or  the  pastor,  and  the 
latter  should  go  away  for  two  or  three  days,  the  assistant  priest  in  such 
a case  should  not  witness  marriages  without  consulting  the  bishop.  Ibid. 

11  Ibid.,  p.  1 15. 

12  Ibid.,  n.  939,  pp.  139-140. 


THE  NEW  MARRIAGE  LEGISLATION. 


25 


ordine  ad  matrimonium.”  13  Indeed,  if  assistants  be  not  so  ap- 
pointed, doubts  may  arise  about  the  validity  of  marriages,  ow- 
ing to  the  absence  of  proper  delegation.  If  marriages  should 
be  declared  null  and  void  because  of  the  failure  of  assistant 
priests  to  secure  proper  delegation,  it  would  be  a source  of 
great  scandal  here  in  America  where  our  insistence  on  the  in- 
dissolubility of  marriage  in  the  Catholic  Church  is  so  patent 
to  our  Protestant  brethren.  Whilst  a non-Catholic  public 
accepts  the  law  of  the  State  which  will  not  recognize  a con- 
tract in  the  absence  of  certain  positive  prescriptions,  the  same 
public  (although  unreasonably) will  look  askance  at  the  Church 
for  declaring  a marriage  invalid  because  the  priest  was  not  duly 
authorized.  The  faithful  are  not  canonists,  and  it  will  be 
difficult  to  explain  to  them  why  any  priest  cannot  perform  the 
marriage  ceremony.  To  the  writer  it  would  seem  advisable 
that  our  assistant  priests  be  “ parochi  in  ordine  ad  matri- 
monium ” in  the  parishes  only  to  which  they  are  assigned.  It 
being  determined  also  that  when  an  assistant  priest,  say  Father 
Brown,  is  removed  from  parish  A to  parish  B,  his  authoriza- 
tion to  witness  marriages  in  parish  A ceases  by  reason  of  his 
transfer,  and  is  acquired  in  parish  B by  reason  of  his  appoint- 
ment to  the  latter  church.  Hence  assistant  priests  would  be 
appointed  in  the  parishes  to  which  they  are  assigned  “ ratione 
officii  ” and  not  “ ratione  personae.”  If  assistant  priests  should 
be  appointed  “ ratione  personae  ” for  an  indefinite  period,  it 
would  mean  that  they  could  validly  witness  a marriage  in  any 
church  to  which  they  had  been  previously  assigned.  Such  an 
arrangement  would  certainly  cause  great  confusion.  Thus  if 
Ordinaries  and  Diocesan  Synods  should  deem  it  advisable  to 
appoint  all  assistant  priests  (“ratione  officii”)  “parochi  in 
ordine  ad  matrimonium  ” in  the  parishes  only  to  which  they 
are  actually  assigned,  we  should  have  a simple  solution  of  the 
case.  If  our  assistant  priests  be  thus  appointed,  the  five  con- 
ditions given  above  must  be  observed  in  order  that  they  may 
validly  perform  the  marriage  ceremony. 


13  Ibid.,  n.  914,  pp.  118-121. 


26 


A COMMENTARY  ON 


IDaltD  Belegatton. 

Delegation  may  be  granted  orally  or  in  writing,  or  by  tele- 
phone or  telegram.  The  last  two  methods  should  ordinarily 
not  be  used.  In  a case  of  marriage  “ in  extremis  ”,  or  when 
there  is  question  of  grave  necessity,  or  necessity,  it  would 
seem  advisable — for  it  is  not  clear  that  it  is  forbidden  in  such 
a case — to  secure  delegation  by  telephone  or  telegram.  The 
Ordinary  and  the  parish  priest  (that  is,  not  merely  the  canon- 
ical and  territorial  “ parochus,”  but  also  the  parish  priest  “ in 
ordine  ad  matrimonium  ” as  determined  by  the  decree  “ Ne 
Temere  ”)  are  authorized  by  Apostolic  authority  to  delegate 
validly  other  priests  to  witness  all  marriages,  only  within  the 
limits,  however,  of  their  jurisdiction.  Delegation  may  be 
considered  in  reference  to  the  one  delegating  and  to  the  one 
delegated.  There  are  conditions  for  the  delegator  in  grant- 
ing delegation,  as  well  as  conditions  for  the  delegate  in  exer- 
cising the  authority  received. 

Ebe  delegator. 

All  Ordinaries  and  parish  priests  (a)  who  can  validly  as- 
sist at  marriages,  can  validly  delegate  priests  to  witness  all 
marriages  within  the  limits  only  of  their  jurisdiction.  Any 
reason  (b)  for  which  the  Ordinary  or  the  parish  priest  can- 
not validly  assist  at  a marriage,  will  likewise  exclude  him  from 
validly  delegating.  As  the  parish  priest’s  authority  is  from 
the  Holy  See,  he  can,  even  contrary  to  the  bishop  or  diocesan 
synod,  validly  (though  sinfully)  grant  delegation,  provided  he 
himself  can  validly  witness  the  marriage  for  which  the  delega- 
tion is  granted.  To  grant  delegation,  the  Ordinary  or  the 
parish  priest  must  give  the  permission  (c)  knowingly  and  will- 
ingly. Delegation  granted  through  (d)  fear,  or  obtained 
through  some  fraudulent  means,  or  through  some  mistake,  is 
commonly  accepted  by  canonists  to  be  valid.14  If,  in  securing 
the  delegation,  a false  reason  be  alleged,  the  delegation  will  be 
valid,  unless  the  Ordinary  or  the  parish  priest  expressly  made 


14Gasparri,  II,  942.  p.  141. 


THE  NEW  MARRIAGE  LEGISLATION , 2 y 

the  truth  of  the  reason  given  a necessary  condition  “ ad  vali- 
ditatem.” 15  Ordinaries  and  parish  priests  can  (e)  grant 
delegation  so  that  the  delegated  priest  may  subdelegate.18  The 
Ordinary  or  the  parish  priest  (f)  cannot  grant  indeterminate 
delegation.  They  cannot,  for  instance,  say  to  the  contracting 
parties : “ I delegate  any  priest  you  choose  to  perform  the 
marriage  ceremony.”  17 


Zbc  Delegated  lprlcst. 

The  priest  delegated  to  witness  marriages  should  secure 
delegation;  that  is,  (a)  real,  and  antecedent  to  the  marriage. 
Presumed  delegation  (b)  is  one  in  which  a priest  persuades 
himself  that  he  has  the  Ordinary  or  parish  priest’s  permission, 
or  that  either  would  grant  him  permission  to  witness  the  mar- 
riage in  question.  Presumed  permission  is  not  sufficient  for 
the  validity  of  marriage.18  Tacit  delegation  (c)  is  that  in 
which  the  Ordinary  or  the  parish  priest  is  not  present,  but 
knows  that  another  priest  is  assisting  at  the  marriage  cere- 
mony, and,  though  he  could  easily  forbid  the  priest  to  per- 
form it,  he  does  not  do  so.  This  delegation  is  very  uncertain ; 
if  it  resolves  itself  into  the  presumed,  it  will  invalidate  the 
marriage.  The  Council  of  Trent  and  the  “ Ne  Temere  ” do 
not  exclude  tacit  delegation.  One  should  never  act  on  tacit 
delegation,  if  it  be  a question  of  marriage  to  be  contracted. 
When  the  marriage  has  already  been  contracted,  the  presump- 
tion is  in  favor  of  the  validity  of  the  Sacrament.19  The  dele- 
gated priest  cannot  validly  witness  (d)  a marriage  before  he 
knows  that  delegation  has  been  conferred  and  before  he  has 
expressly  or  tacitly  accepted  it.20  When  the  delegated  priest 

15  Ibid.,  pp.  141,  142. 

16  The  presence  of  a parish  priest  in  witnessing  a marriage  is  not  an 
act  of  jurisdiction,  but  merely  the  act  of  assisting  as  an  authorized  wit- 
ness of  the  marriage;  hence  to  speak  of  delegating  is  inaccurate,  for  it  is 
really  the  appointment  of  a substitute.  Wernz,  n.  180,  p.  284. 

17  Ne  Temere,  VI;  Wernz,  p.  286,  nota  217. 

18  Wernz,  n.  180,  p.  289,  nota  221;  Gasparri,  II,  n.  946,  p.  145. 

19  Wernz  et  Gasparri,  Ibid. 

2°  Wernz,  p.  287. 


28 


A COMMENTARY  ON 


(e)  is  authorized  to  witness  all  marriages  that  come  to  him  in 
his  territory,  he  may  subdelegate  for  particular  cases,  even 
though  the  Ordinary  or  the  parish  priest  has  not  expressly 
stated  this.21  If  the  delegated  priest  be  authorized  (f)  to  wit- 
ness one  particular  marriage,  or  a certain  number  of  mar- 
riages, he  cannot  subdelegate.22  It  will  be  most  desirable  that 
the  delegated  priest  (g)  have  his  delegation  in  writing, 
whether  the  delegation  be  given  by  the  Ordinary  or  the  parish 
priest,  and  this  not  for  the  sake  of  contesting  cases  with  the 
bishop  or  parish  priest,  but  as  testimony  in  settling  doubts 
about  the  validity  of  a marriage,  if  doubts  should  subse- 
quently arise.  If  in  certain  dioceses  the  Ordinaries  should 
decide  to  leave  the  matter  of  delegation  (h)  entirely  to  pas- 
tors, lest  confusion  arise,  or  for  fear  of  transgressing  “ quoad 
liceitatem”  the  rights  of  parish  priests,  or  disturbing  the  peace- 
ful government  of  parishes,23  the  writer  would  suggest  that 
printed  forms  of  delegation  similar  to  those  on  the  opposite 
page  be  given  to  every  delegated  priest. 

The  forms  given  on  the  opposite  page  might  be  got  up 
at  little  cost,  in  the  shape  of  printed  check  books,  with  per- 
forated line  in  center.  The  pastor  will  have  the  clearest  evi- 
dence on  the  stub  check  of  every  delegation  that  he  has  given. 
The  priest  delegated  will  also  have  like  proof.  The  Ordinary 
or  the  parish  priest  may  delegate  assistant  priests  for  all  mar- 
riages, or  for  a definite  period,  or  for  particularly  specified 
cases. 

21  Ibid.,  n.  180,  p.  285. 

22  Ibid. 

23  Gasparri,  II,  n.  940,  p.  140. 


THE  NEW  MARRIAGE  LEGISLA7 ION. 


29 


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30 


A COMMENTARY  ON 


S>elecjation  IRevofceD. 

Delegation  is  revoked  by  any  (a)  fact  or  written  order, 
which  must  be  made  known  or  read  by  the  delegated  priest 
before  he  performs  the  marriage  ceremony.  Thus  if  the  dele- 
gated priest  does  not  know,  or  has  no  intimation  of  the  revo- 
cation of  his  authority,  it  is  certain  that  the  marriage  is  valid, 
even  though  the  Ordinary  or  parish  priest  actually  revoked  the 
delegation  before  the  marriage  ceremony  took  place.24  If  the 
Ordinary  or  the  parish  priest  (b)  should  die,  or  be  removed 
from  office  before  a marriage,  for  which  either  of  them  had 
delegated  a priest,  is  celebrated,  the  marriage  would  certainly 
be  valid,  provided  the  delegated  priest  had  no  intimation  of 
the  death  up  to  the  time  he  performed  the  marriage  ceremony, 
or  no  intimation  of  the  revocation  from  the  successor  of  the 
Ordinary  or  the  parish  priest  ” 25  who  granted  the  delegation. 

Beleoatlon  in  tbc  'Gtniteb  States. 

It  is  to  be  hoped  that  no  marriages  here  in  the  United  States 
will  be  made  invalid  because  of  failure  to  secure  proper  dele- 
gation; and  further,  that  no  perplexing  cases  will  arise  owing 
to  lack  of  evidence  in  proving  juridically  that  duly  authorized 
delegation  was  conferred.  Two  decisions  of  the  Sacred  Con- 
gregation regarding  delegation  are  to  be  remembered.  First, 
when  a priest  is  delegated  for  only  one  particular  marriage, 
his  delegation  is  not  for  any  one  marriage,  but  only  for  the 
one  marriage  specified.  If  a priest  with  such  a delegation 
should  assist  at  any  other  marriage  than  the  specified  mar- 
riage in  question,  there  would  be  no  marriage  at  all.26  Dele- 
gation to  witness  only  the  marriage  of  A and  B would  not 
permit  a priest  to  perform  validly  the  marriage  ceremony  for 

24  Wernz,  n.  180,  IV,  p.  290;  Gasparri  goes  so  far  as  to  say  that  the 
marriage  is  valid  even  though  the  priest  and  groom  (but  not  the  bride) 
know  of  the  revocation  when  the  marriage  ceremony  is  performed.  He 
also  thinks  that  the  marriage  is  valid  if  the  contracting  parties  know  of 
the  revocation,  but  not  the  officiating  priest.  (II,  n.  951,  p.  152.) 

25  Wernz.  Even  though  the  death  or  removal  from  office  were  known, 
Father  Wernz  thinks  that  the  marriage  would  be  valid,  if  special  delega- 
tion were  granted.  {Ibid.,  nota  228.) 

26  Cronin,  Rome,  26  Oct.,  1907,  pp.  197-8. 


THE  NEW  MARRIAGE  LEGISLATION. 


31 


A and  C.  Secondly,  faculties  “ administrandi  omnia  sacra- 
menta  quae  ordinem  episcopalem  non  requirunt,”  given  by  the 
Ordinary  to  all  who  are  not  parish  priests,  do  not  necessarily 
include  authority  to  witness  marriages.27  The  faculties  in 
some  of  our  dioceses  read  “ administrandi  omnia  sacramenta, 
Confirmatione  et  Ordine  exceptis.”  While  it  does  not  seem 
absolutely  certain  that  the  decision  cited  covers  this  case, 
there  is  little  doubt  that  the  second  wording  does  not  neces- 
sarily include  authorization  to  witness  all  marriages.  There 
is,  however,  no  need  for  this  uncertainty,  if  the  ordinaries  and 
diocesan  synods  will  state  in  unequivocal  terms  the  power  or 
delegation  given,  such  as  “ assistendi  valide  omnibus  matri- 
moniis  in  paroecia  cui  actualiter  assignatus  es,  absque  speciali 
Ordinarii  delegatione,  non  licite  tamen  inconsulto  parocho.” 
It  will  be  easier  to  settle  the  question  of  disobedience  to  dio- 
cesan authority  than  to  solve  the  many  difficulties  arising  in  a 
community  from  invalid  marriages.  The  reason  of  urging 
this  delegation  is,  that  we  are  a little  easy-going  in  our  methods 
and  apt  to  forget  canonical  prescriptions.  Canon  Law  is 
gradually  becoming  more  appreciated  among  us,  but  until  the 
appreciation  be  fuller  and  more  general,  it  would  seem  advis- 
able to  make  sure  of  one  thing;  namely,  that  of  granting  dele- 
gation in  such  a way  that  we  shall  be  certain  that  all  our 
marriages  are  valid. 

Gwo  Witnesses. 

According  to  the  decision  of  the  Congregation  of  the  Coun- 
cil 28  a marriage  will  be  invalid,  if  two  witnesses  are  not  pres- 
ent. One  witness  will  not  suffice.  The  new  decree  specifies 
no  qualifications  for  the  witnesses,  hence,  women,  minors,  se- 
cular or  regular  clerics,  infidels,  excommunicated  persons, 
heretics,  etc.,  can  be  called  on  to  assist  validly  at  the  marriage 
ceremony.  Many  diocesan  statutes  rightly  forbid  several  of 
the  above  classes.  The  violation,  however,  of  the  diocesan 
statute  would  not  render  a marriage  invalid.29 

27  Such  is  the  decision  of  the  Holy  Office  given  to  Archbishop  Chapelle, 
Cf.  Eccl.  Review,  March,  1899,  pp.  281-2,  Vol.  XX. 

28  14  Jany.,  1673.  Gasparri,  II,  n.  953,  pp.  153,  154.  29  Ibid. 


A COMMENTARY  ON 


32 

Exceptional  Cases. 

I.  In  case  of  proximate  danger  of  death,  when  the  Ordinary 
or  the  parish  priest,  or  a priest  delegated  by  either  of  them, 
can  not  be  had,  any  priest  with  two  witnesses  can  validly  wit- 
ness a marriage  entered  into  on  a deathbed  as  a relief  of 
conscience,  and  the  legitimizing  of  the  children  (if  there 
be  any). 

The  question  of  the  first  exception,  if  it  may  be  so  called,  is 
not  one  where  the  party  is  “ in  articulo  mortis  ” but  in  “ peri- 
culo  mortis.”  Cardinal  Gennari 30  interprets  in  a sensible  and 
broad  spirit,  as  is  usual  with  him,  the  words  * cannot  be  had,” 
to  mean,  that  there  is  not  sufficient  time  to  go  for  the  Ordinary 
or  parish  priest,  allowing  them  also  time  to  come  to  the  dying 
person.  This  calculation  is  not,  he  says,  to  be  mathematical, 
but  moral;  hence,  not  certainty,  but  probability,  is  required. 
If  a doubt  exist,  give  the  dying  person  the  benefit  of  the  doubt. 
The  same  authority  holds  that  one  may  make  use  of  the  tele- 
phone or  telegraph  in  obtaining,  in  such  a case,  the  proper  dele- 
gation. By  the  decrees  of  the  Holy  Office,  20  February,  1888, 
and  9 January,  1889,  Ordinaries  could  delegate  parish  priests, 
or  those  in  charge  of  a parish  “ habitualiter,”  to  dispense 
from  all  diriment  matrimonial  impediments  (with  two  ex- 
ceptions) in  the  case  of  death  31  (“  in  periculo  mortis  ”). 

The  two  exceptions  were:  first,  priestly  ordination;  and, 
secondly,  affinity  “ in  linea  recta  ex  copula  licita.”  How  do 
we  stand  to-day  in  regard  to  this  faculty?  Can  our  priests, 
when  a party  is  dying,  dispense  from  the  aforesaid  impedi- 
ments, including  the  impediment  of  clandestinity,  that  is,  can 
they  dispense  with  the  two  witnesses?  The  solution  may  be 
clear  from  the  following.  Our  pastors  and  priests  in  charge 
of  parishes  who  may  be  delegated  “ habitualiter  ” by  the  Or- 
dinary, can,  after  Easter,  when  they  assist  at  a marriage  “ in 

80  Breve  Commento. 

31  Acta  S.S.,  Vol.  XX,  p.  543;  Vol.  XXI,  p.  696;  Com.  in  Fac.  Apos., 
Putzer,  ed.  1897;  De  Becker,  pp.  286-287;  Tanquerey,  (ed.  1907)  PP- 
7I2-7I3- 


THE  NEW  MARRIAGE  LEGISLATION. 


33 

extremis,”  provided  they  be  delegated,  dispense  from  all  diri- 
ment matrimonial  impediments,  except 

1.  priestly  orders;  that  is,  they  cannot  validate  any  at- 
tempted marriage  of  a priest; 

2.  affinity  “ in  linea  recta  ex  copula  licita;” 

3.  clandestinity — (there  must  be  two  witnesses). 

Again,  it  may  be  necessary  to  remind  pastors  that,  although 

they  have  received  this  faculty  “ habitualiter,”  they  cannot 
validly  exercise  it  when  there  is  time  to  have  recourse  to  the 
Ordinary. 

Whilst  our  assistant  priests,  as  well  as  any  priest,  whether 
of  the  diocesan  or  the  regular  clergy,  can  validly  assist  at  any 
marriage  when  one  of  the  parties  is  in  danger  of  death,  yet 
they  cannot : 

1.  dispense  from  the  matrimonial  diriment  impediments 
mentioned  in  the  decrees  of  the  Holy  Office,  unless 
they  have  been  delegated  for  a particular  and  specified 
case,  by  the  Ordinary ; 32 

2.  dispense  from  the  impediment  of  clandestinity  (there 
must  be  two  witnesses). 

Our  assistant  priests  will  ask  what  is  their  course  when  such 
an  urgent  case  comes  to  them.  There  may  be  no  time  to 
refer  it  to  the  bishop,  and  the  pastor  who  has  been  “ habi- 
tualiter ” delegated  cannot  always  attend  such  a dying  person. 
Three  things  are  to  be  kept  in  mind : 

1.  that  pastors  cannot  subdelegate; 

2.  that  pastors  who  are  “ habitualiter  ” delegated,  when 
there  is  no  time  to  have  recourse  to  the  Ordinary,  can 
grant  the  dispensation  without  actually  going  to  the 
dying  person;  thus  the  assistant,  if  he  know  the  case 
before  leaving  the  parochial  residence,  can  ask  the 
parish  priest  to  dispense  from  the  diriment  matrimonial 
impediments  above  stated. 

3.  Suppose  the  assistant  priest  knows  nothing  of  the  case 


32  It  may  be  that  some  of  our  Bishops  have  received  extraordinary 
power  to  delegate  our  assistant  priests  “ habitualiter." 


34 


A COMMENTARY  ON 


until  he  has  heard  the  confession  of  the  dying  party, 
or  suppose  the  pastor  is  absent  for  a day  or  two,  and 
there  is  no  time  to  consult  either  the  Ordinary  or  the 
pastor,33  in  such  a case  the  marriage  cannot  be 
validated.  It  is  consoling,  however,  to  know  that  the 
sins  can  be  forgiven  and  that  the  party  can  save  his  or 
her  soul,  by  sincere  repentance  and  confession,  even 
though  he  or  she  lived  in  concubinage,  and  even  though 
illegitimate  children  remain,  through  no  fault  of  the 
latter,  to  perpetuate  the  shame  of  their  father’s  and 
mother’s  sins. 

II.  If  in  any  of  our  missionary  districts  parties  cannot 
during  one  month  or  more  secure  the  Ordinary  or  a missionary 
assigned  to  their  territory  or  a priest  delegated  by  either  of 
these,  they  can  in  the  presence  of  two  witnesses  (no  priest 
being  present)  enter  into  the  marriage  contract  and  validly 
and  licitly  receive  the  Sacrament  of  Matrimony.  According  to 
the  eminent  canonist  Cardinal  Gennari 34  a month  means 
thirty  days.  Parties  so  situated  are  not  obliged  to  wait  one 
day  over  the  month;  but  during  the  month  they  should  make 
every  reasonable  effort  to  find  a duly  authorized  priest.  They 
would  not  however  be  obliged  to  put  themselves  to  an  in- 
convenience which  would  constitute  for  them  a “ grave  in - 
commodum  ” Such  a marriage  would  not  be  recognized  by 
the  State  except  in  those  States  where  the  common-law 
marriage  holds;  hence  to  have  their  union  regarded  as  legal, 
the  parties  can  give  the  formal  declaration  of  their  consent 
to  marriage  before  a notary  public.  If  parties  so  situated 
do  not  express  their  consent,  either  at  the  time  of  their 
marriage,  or  subsequently,  before  any  duly  authorized  civil 
magistrate,  they  should  on  the  first  opportunity  of  meeting 
any  priest  recognized  by  the  State  as  an  official,  go  through  a 
ceremony  that  would  legalize  their  marriage  and  thus  prevent 
a great  many  possible  difficulties  that  could  arise  in  our  courts. 

83  In  such  a cme,  if  the  assistant  has  time  to  obtain  the  dispensation 
by  telephone,  we  think  he  may  do  so. 

34  Breve  Commento. 


THE  NEW  MARRIAGE  LEGISLATION. 


35 

It  might  be  asked  whether  parties  who  have  declared  their 
mutual  consent  according  to  this  exceptional  provision  (hence 
truly  and  licitly  married  before  God),  may,  if  no  State  official 
can  be  found,  allow  a schismatical  or  heretical  minister  to 
legalize  their  marriage.  If  they  make  the  protestation  to  the 
minister  that  they  seek  his  presence  only  as  a State  official  and 
moreover  if  they  absolutely  exclude  the  ceremony  or  ritual 
of  every  sect,  this  in  our  opinion  might  be  justified ; but  such 
a course  should  not  be  encouraged.36 

Uldt  /l&arrtaaes. 

The  Ordinary  or  the  duly  authorized  priest  having  ob- 
served all  that  is  required  for  the  validity  of  marriage,  can 

licitly  perform  the  ceremony  of  matrimony  by  observing  the 
following  prescriptions : 

I.  Although  local  contrary  custom  has  modified  the  general 

law  36  which  requires  that  witnesses  of  marriage  testify  under 
oath  as  to  the  freedom  of  the  contracting  parties,  still  the 
parish  priest  or  Ordinary  is  under  a serious  obligation  to  as- 
certain as  best  he  can  the  freedom  of  the  future  husband  and 

wife.  This  is  especially  true  in  the  case  of  strangers  and 

foreigners,  from  whom  testimonial  letters  from  their  former 
parish  priest  or  priests  should  be  required. 

II.  To  acquire  a domicile  two  conditions  are  necessary  . first, 
actual  habitation  in  the  parish  where  the  marriage  is  to  be 
contracted;  secondly,  the  intention  of  permanent  residence 
there.  A month's  residence  actually  begot  a quasi-domicile  in 
the  United  States  for  such  as  came  from  a place  where  the 

35  We  think  the  excommunication  of  the  third  Baltimore  Council  (n 
127,  P-  65)  was  not  intended  for  such  a case.  The  parties  in  the  case 
above  given  are  married  validly  and  licitly  in  the  eyes  of  the  Church 
and  before  God.  They  present  themselves  to  the  minister  for  the  sole 
reason  that  he  is  a State  official,  so  that  their  children  may  not  be  ille- 
gitimate before  the  State.  Such  a protection  is  due  the  wife  especially; 
for  unconscientious  men  could  leave  their  wives  and  marry  again;  and  for 
the  innocent  party  there  would  be  no  redress,  because  the  State  recognized 
no  marriage. 

36  Clement  X,  1670  et  Inst,  ad  Episcopos  Orientales,  1890  Coll,  de 
Prop.  Fid.,  1376,  ed.  1893.  Tanquerey,  Theol.  Mor.,  ed.  1907,  p.  588,  n,  974 


A COMMENTARY  ON 


36 

Tamctsi  obtained.37  Now  for  the  Universal  Church  the  law 
is  simplified,  by  requiring  for  licit  marriage  at  least  a month’s 
residence,  if  a domicile  be  not  had.  It  must  be  one  or  the 
other.  Actual  habitation  in  a place  for  a few  days,  with  the 
intention  of  remaining  there  the  greater  part  of  the  year, 
(which  constitutes  a quasi-domicile)  is  not  sufficient.  Thus 
a domicile  or  a month’s  residence  in  the  diocese  is  required,  if 
the  Ordinary  is  to  perform  the  ceremony;  a domicile  or  a 
month's  residence  in  the  parish  is  required,  when  the  parish 
priest  is  to  witness  the  marriage. 

III.  If  neither  of  the  parties  to  be  married  have  a domicile, 
or  a month’s  residence,  then  the  Ordinary  or  the  parish  priest 
in  order  to  assist  licitly  at  the  marriage,  should  obtain  per- 
mission from  the  Ordinary  or  the  pastor  of  the  bride.  If 
there  be  a good  reason  for  not  asking  the  Ordinary  or  the 
bride’s  pastor,  permission  may  be  obtained  from  the  Ordinary 
or  the  parish  priest  of  the  groom.  In  case  of  grave  necessity, 
no  permission  need  be  obtained. 

It  must  be  noted  that  there  is  no  question  of  obtaining  dele- 
gation. It  is  merely  the  obligation  of  securing  permission  (“li- 
centia  parochi  vel  ordinarii”).  And  Cardinal  Gennari88  thinks 
that  presumed  or  interpreted  permission  will  suffice.  A parish 
priest  may  refuse  permission,  if  he  has  a good  reason  for  do- 
ing so.  If  he  has  not,  application  should  be  made  to  the 
Ordinary  or  to  the  pastor  of  the  other  contracting  party.  Bv 
grave  necessity  we  think  is  here  understood  anything  that 
would  involve  a serious  inconvenience  if  this  permission  were 
obtained — such  as  avoiding  scandal  or  defamation  of  charac- 
ter, notable  financial  loss  or  expenditure,  etc. 

IV.  Either  the  Ordinary  or  a priest  whom  the  Ordinary 
has  delegated,  should  grant  permission  before  any  parish  priest 
can  licitly  witness  the  marriages  of  persons  without  a fixed 
abode.  Necessity  excuses  the  priest  from  obtaining  the  per- 
mission. In  large  dioceses,  it  would  seem  advisable  for  the 
Ordinary  to  appoint  the  deans  or  other  suitable  priests,  with 

5T  Balt.  Cone.  Ill,  Append.  255. 

48  Breve  Commento. 


THE  NEW  MARRIAGE  LEGISLATION. 


37 

authority  to  decide  in  their  localities,  on  the  case  of  “ vagi." 
It  is  to  be  noted  that  the  previous  number  (III)  requires  the 
existence  of  a grave  necessity.  Whilst  in  the  present  num- 
ber (IV)  necessity  excuses;  by  which  we  think  is  understood 
want  of  sufficient  time  to  consult  the  Ordinary  without  causing 
a rather  serious  inconvenience  or  a considerable  financial  loss, 
or  giving  some  scandal,  or  the  moral  certainty  that  upon  his 
refusal  the  parties  (vagi)  will  be  married  immediately  by  a 
minister  or  State  official,  or  the  fear  that  they  will  live  in 
concubinage. 

V.  The  general  rule  is  that  the  marriage  ceremony  should 
take  place  in  the  bride’s  parish ; and  the  exception,  in  that  of 
the  groom.  The  bride,  however,  may  have  two  parishes : one 
where  she  has  a domicile,  the  other  where  she  has  a month’s 
residence.  If  this  be  the  case,  we  think  that  she  should  be 
married  where  she  has  the  domicile,  unless  she  is  to  acquire 
immediately  a domicile  where  she  had  the  month’s  residence, 
which  would  be  sufficient  reason  to  have  the  month’s  residence 
take  precedence  over  the  domicile.  If  the  groom  have  a 
domicile  in  one  parish,  and  the  bride  a month’s  residence  in 
another,  Cardinal  Gennari  thinks  the  marriage  should  take 
place  in  the  groom’s  parish.  It  is  a most  reasonable  interpre- 
tation that  such  a case  furnishes  not  merely  a “ justa  causa,” 
but  was  not  intended  to  fall  under  the  word  of  the  law, — “ let 
it  be  held  as  a rule.”  If  the  contracting  parties  are  to  acquire 
immediately  after  marriage  a domicile  where  the  bride  had 
a month’s  residence,  it  would  seem  but  just  that  the  ceremony 
be  celebrated  in  the  latter  place.  The  pastor  of  the  groom 
may  witness  the  marriage  whenever  there  is  a good  reason. 
Not  every  little  reason  can  be  called  a just  reason;  but  a matter 
of  saving  expenses,  or  any  arrangements  for  marriage  that 
would  mean  the  inconvenience  of  either  party,  or  the  observ- 
ance of  local  social  proprieties,  would  be  considered  good  rea- 
sons, any  one  of  which  will  be  sufficient  (“causa  justa  ”)  to 
excuse  the  parties  from  being  married  by  the  bride’s  pastor. 
Also,  difference  between  the  future  bride  and  her  pastor  which 
would  mean  for  the  latter  a severe  correction,  or  a deep  humi- 


A COMMENTARY  ON 


38 

liation — or  when  the  pastor  of  the  groom  is  a very  special 
friend  either  of  the  groom  or  the  bride,  or  the  parties  intend 
residing  in  the  groom’s  parish  where  they  wish  to  have  the 
marriage  ceremony,  we  think  a “ causa  justa.” 

The  following  tabulation  will  help  to  show  where  marriage 
should  regularly  take  place;  that  is,  in  all  cases  where  neither 
grave  necessity  nor  necessity  exists. 


Has  Domicile. 

Has  Month’s  Resi- 
dence. 

Marriage 

SHOULD  TAKE 

place 

Marriage  may 
take  place 

J Mary  Smith  in  parish  A. 
1 John  Breen  in  parish  A. 

1 Mary  Smith  in  parish  B. 
( John  Breen  in  parish  B. 

| 

1 

In  parish  A. 

In  parish  B. 

J Mary  Smith  in  parish  A. 
1 John  Breen  in  parish  B. 

John  Breen  in  parish  C. 

In  parish  A. 

In  parish  B or  C. 

( Mary  Smith  in  parish  A. 
i John  Breen  in  parish  B. 

( Mary  Smith  in  parish  C. 
1 John  Breen  in  parish  D. 

In  parish  A. 

In  parish  B,  C or  D. 

John  Breen  in  parish  B. 

Mary  Smith  in  parish  A. 

In  parish  B. 

In  parish  A. 

| Mary  Smith  in  parish  A. 

( John  Breen  in  parish  B. 

> 1 

In  parish  A. 

In  parish  B. 

Special  tftuetmons  ot  Xicit  dftarrtageg  In  tbe  TllntteO  States. 

[n  some  of  our  dioceses  either  the  regulation  exists  or  the 
custom  obtains  that  persons  are  considered  parishioners  of 
that  parish  where  they  rent  a pew.  Thus  parties  who  live  in 
the  territory  of  parish  B,  but  rent  a pew  in  parish  A,  where 
they  regularly  hear  Mass  and  receive  the  Sacraments,  could 
without  any  question  be  married  in  parish  A.  Moreover  the 
pastor  or  clergy  of  parish  A in  such  a case  always  receive 
the  stole  fees.  May  this  custom  continue  after  Easter,  1908? 
We  think  not.  The  law  reads  “ by  parish  priest  is  to  be  un- 
derstood not  only  a priest  legitimately  presiding  over  a parish 
canonically  erected,  but  also  in  regions  where  parishes  are 
not  canonically  erected,  the  priest  to  whom  the  care  of  souls 
has  been  legitimately  entrusted  in  any  specified  district  and 


THE  NEW  MARRIAGE  LEGISLATION . 


39 


who  is  equivalent  to  a parish  priest ; and  in  missions  where  the 
territory  has  not  yet  been  perfectly  divided,  every  priest  gen- 
erally deputed  by  the  superior  of  the  mission  for  the  care  of 
souls  in  any  station.”  It  is  clearly  manifest  from  the  decree 
that  persons  (“  quoad  matrimonium  licitum  ”)  are  subject 
to  that  parish  priest  in  whose  parish  or  specified  district  they 
are  territorially  located;  by  preference  to  the  pastor  in  whose 
parish  the  bride  has  a domicile  or  a month’s  residence,  and  then 
to  the  parish  where  the  groom  has  a domicile  or  a month’s 
residence.  The  law  further  reads  in  its  concluding  paragraph : 
“ These  presents  are  to  have  force  by  the  special  order  of  our 
most  Holy  Father  Pope  Pius  X,  all  things,  even  those  worthy 
of  special  mention,  to  the  contrary  notwithstanding.”  As  no 
diocesan  authority  can  make  any  ruling  contrary  to  the  de- 
cree, neither  can  any  contrary  custom  continue  to  obtain. 

A second  difficulty,  and  one  of  greater  importance,  is  the 
question  of  marriages  in  our  national  churches.  Should  all 
the  Germans,  or  Italians,  or  Poles  be  married  in  the  church 
especially  erected  and  administered  for  the  people  of  these 
respective  nationalities,  or  should  they  be  married  in  the 
parish  where  they  are  territorially  located?  It  is  a difficulty 
of  a parish  within  a parish,  but  founded  on  such  a distinction 
that  there  will  be  an  easy  solution.  A church  for  the  Italians 
may  embrace  a whole  city.  In  such  a case,  the  entire  city,  it 
would  seem,  is  the  specified  limits  of  that  parish  for  the  Italians 
only.  Thus  in  a small  city  the  Italian  church,  St.  Catherine’s, 
should  be,  we  think,  the  parish  church  of  all  the  Italians  of 
the  city,  but  for  them  only.  American  parishioners  or  those 
of  other  nationalities  (not  Italian)  territorially  situated  in 
St.  Catherine’s  parish,  should  not  be  married,  we  venture  to 
say,  in  St.  Catherine’s  church,  but  in  the  parish  to  which  they 
belong. 

A further  question  here  arises : What  of  those  foreigners 
who  have  adapted  themselves  to  the  country,  and  who  speak 
our  language ; and  again,  what  of  the  children  of  these 
Italians,  Germans,  and  Poles,  etc.  who  speak  English  and 
who  are  thorough  Americans — should  these  two  classes  be 


40 


A COMMENTARY  ON 


married  in  the  churches  erected  for  their  parents  and  where  a 
foreign  language  is  spoken,  or  rather  in  the  parish  where  they 
are  territorially  situated?  These  are  questions  that  must  be 
presented  to  the  Sacred  Congregation,  and  the  decision,  we 
think,  will  depend  largely  on  the  presentation  of  the  case  to 
the  Holy  See.  If  our  Bishops  should  request,  first,  that  for- 
eigners “ in  ordine  ad  matrimonium  licitum  ” are  to  be  con- 
sidered as  belonging  to  the  parish  of  their  national  tongue, 
even  though  they  reside  in  one  or  other  of  the  English- 
speaking  parishes;  and  secondly,  in  conformity  with  the 
declaration  given  by  the  S.  Congregation  of  the  Propaganda 
(26  April,  1897)  and  published  by  Cardinal  Martinelli,80 
that  Catholics,  though  not  natives  of  America,  yet  who  know 
the  English  tongue,  have  the  right  to  become  members  of  the 
church  in  which  the  English  tongue  is  in  use; 40  thirdly,  that 
the  children  of  these  foreigners  are  not  obliged  “ quoad  matri- 
monium licitum  ” to  be  married  in  the  parish  church  erected 
for  the  people  who  worship  in  a foreign  tongue,  but  prefer- 
ably in  the  parish  church  in  which  they  are  territorially  located 
— it  is  very  probable  that  the  Holy  See  without  much  delay 
will,  accede  to  these  three  requests,  since  they  conform  to  a 
previous  decision  of  the  Propaganda.  Our  Bishops  know 
best  what  is  to  be  done  to  further  the  real  interests  of  religion, 
and  it  is  more  than  probable  that  by  the  time  the  Archbishops 
meet  at  the  Catholic  University  (next  May)  every  Metropoli- 
tan in  the  country  will  have  convened  the  Bishops  of  his 
province.  If  this  be  done,  then  at  the  meeting  of  the  Arch- 
bishops the  sentiments  and  opinions  of  every  Bishop  in  the 
country  can  be  expressed  through  the  Metropolitans,  and  a 
petition  drawn  up  to  the  Holy  See  which  will  meet  with  the 
unanimous  approval  of  the  American  Hierarchy. 

39  Eccl.  Review.  Vol.  XVII,  July  1897,  p.  87,  and  Vol.  XXXVIII.  Jan 
1908,  pp.  65-69. 

40  Ibid. 


THE  NEW  MARRIAGE  LEGISLATION. 


4» 

XLbc  mew  an*>  Correct  TReafetratfon. 

The  Italians  say,  “ Gli  Americani  sono  molto  pratici.” 
The  American  priest  without  much  reflection  will  conclude  that 
he  could  have  excogitated  a more  practical  system  of  registra- 
tion than  the  one  prescribed,  but  on  fourth  or  fifth  consider- 
ation he  will  see  the  great  advantage  of  having  more  than  one 
record  of  a marriage.  Any  American  priest  is  not  merely  at 
liberty  to  try  to  devise  a good  method,  but  he  will  surely  elicit 
the  heartiest  approbation  of  his  confreres,  who  succeeds  in  ar- 
ranging a convenient  and  satisfactory  registry  of  baptisms  and 
marriages.  In  such  a registry  he  can  introduce  all  the  ad- 
vantages and  accurate  methods  employed  in  our  civil  courts 
for  the  proper  registration  of  marriages,  bearing  in  mind  the 
following  facts  to  be  recorded  in  the  Marriage  Registry 

I.  i.  Names  of  parties  married. 

2.  Names  of  the  witnesses. 

3.  Names  of  church  and  place  where  wedding  took  place. 

4.  The  year,  month,  and  day  of  celebration. 

5.  Any  other  facts  or  names  which  the  Ritual,  Ordinaries, 
or  diocesan  synods  may  prescribe  to  be  recorded. 

6.  Name  of  the  priest  who  performed  the  marriage 
ceremony. 

It  must  be  carefully  noted  that  the  purpose  of  this  law  is  a 
serious  one;  hence  under  grave  sin  41  must  the  Ordinary  and 
parish  priest  see  that  substantially  correct  registrations  be 
made.  The  writer  would  suggest  that  in  the  marriage  registry 
two  other  columns  be  introduced,  one  marked  Registrum 
Baptismorum,  where  he  should  note  that  he  has  recorded  the 
marriage  in  the  Baptismal  Registry  if  the  parties  were 
baptized  in  his  parish.  The  other  column  could  be  Notitia  ad 
Paroch*™ mittenda.  In  this  section  might  be  written  the  fact 
that  due  notice  was  sent  to  the  parish  priest  or  priests  where 
the  parties  were  baptized.  These  two  columns  would  remind 
the  priest  every  time  he  made  an  entry  in  the  marriage  registry 
of  these  newly  imposed  duties  of  registration.  At  first  thought 


41  Breve  Commento. 


42 


A COMMENTARY  ON 


it  may  seem  very  strange  to  record  the  marriages  in  the  Bap- 
tismal record;  but  let  us  suppose  that  John  M.  Smith  and 
Mary  B.  Green  were  married  in  church  A.  John  was  bap- 
tized in  the  church  By  and  Mary  in  church  C.  If  at  any  sub- 
sequent period  a doubt  should  arise  as  to  whether  these  parties 
were  married,  we  should  in  looking  up  the  case  have  three  re- 
cords of  the  marriage  instead  of  one.  Hereafter  if  one 
registry  be  destroyed,  we  may  have  one  or  two  other  records 
to  consult.  Rome,  in  legislating  on  such  a point,  must  cer- 
tainly prefer  to  have  two  or  three  records  of  a marriage,  even 
at  the  cost  of  the  little  inconvenience  of  double  registration. 
The  question  of  proper  registration  may  mean*a  great  deal  to 
Rome  when  she  is  deciding  a matrimonial  case,  while  the  extra 
registration  or  the  sending  of  due  notice  for  registration,  is 
only  a question  of  a minute  or  two  for  the  priest.  Fewer 
mistakes  might  be  made  in  our  registries  if  our  parochial  re- 
cords were  kept  in  English ; or,  at  least,  if  the  names  of  the 
parties  were  recorded  in  both  English  and  Latin.  We  have 
to  deal  frequently  with  unusual  names  which  would  require 
experts  to  Latinize. 

II.  We  fear  our  priests  will  fail  in  their  duty  of  writing  a 
letter  or  two  letters,  as  the  case  may  be,  to  the  parish  priests 
of  the  places  where  the  parties  were  baptized,  unless  some 
convenient  and  practical  system  be  adopted.  There  will  be 
more  likelihood  of  such  a failure  if  the  letters  must  go  to. 
say,  Poland  or  Russia.  For  the  proper  and  convenient  ob- 
servance of  the  law  we  suggest  that  the  pastor  of  every  church 
have  a printed  formula  something  like  the  following  made 
out  in  a concise  form.  A book  of  formulas  could  be  gotten 
up  in  the  manner  shown  on  the  opposite  page: 


Notification  3fonn  for  tbe  J3aptlomal  Register.  ttbe  Same,  with  tUnfUleO^tn  jBianha. 


THE  NEW  MARRIAGE  LEGISLATION. 


43 


44 


A COMMENTARY  ON 


III.  Some  one  will  do  well  to  give  considerable  thought  to 
the  convenient  arrangement  of  a Baptismal  Record.  After 
Easter  we  shall  have  to  be  looking  up  the  old  baptismal  records 
twenty  or  thirty  years  back,  and  in  many  instances  of  a much 
longer  period,  entering  after  the  names  of  the  parties  the  fact 
that  they  have  embraced  the  matrimonial  state.  In  the  Bap- 
tismal Registry  the  following  facts  should  be  recorded : 

1.  Year,  month  and  day  of  marriage. 

2.  Name  of  church  where  marriage  took  place. 

3.  Any  other  facts  ordered  by  the  Ritual  and  diocesan 

synods.  t 

4.  Name  of  priest  who  performed  the  ceremony. 
Provision  should  be  made  in  the  Baptismal  Registry  to  permit 
the  entry  of  two  or  three  marriages  after  the  names.  After 
Easter  widows  and  widowers  will  continue  to  marry. 

Various  forms  of  Baptismal  Registers  are  in  use  in  the  dif- 
ferent parishes  to-day,  and  it  is  only  reasonable  to  suppose 
that  many  of  them  will  be  retained,  provided  they  can  be 
adapted  to  the  requirements  of  the  new  legislation.  Such 
adaptation  may  easily  be  made  in  those  books — for  instance, 
that  recommended  by  the  Tenth  Provincial  Council  of  Balti- 
more and  now  in  common  use  in  the  United  States — which, 
after  all  the  regular  entries  have  been  made,  still  afford  ample 
space  for  additional  notes  and  observations : but  in  those  books 
which  have  blanks  for  the  necessary  details  only,  and  which 
make  no  provision  for  later  supplementary  addenda,  it  may  be 
found  necessary  to  add — with  the  pertinent  cross-references — 
a few  pages  from  time  to  time,  as  required,  at  the  back  of  the 
volume,  by  way  of  appendix  ; or  a distinct  supplementary  book- 
let to  the  Register  itself  may  even  be  made.  The  practical 
sense  of  our  readers  will  suggest  other  means  of  complying 
with  the  substantial  requirements  of  the  law.  until  new  books 
in  due  time  are  needed. 

IV.  1.  It  is  to  be  noted  that  the  responsibility  of  making 
entries  in  the  Matrimonial  Register  falls  not  on  the  priest  who 
actually  performed  the  marriage  but  on  the  parish  priest  or  on 
the  one  in  charge  of  the  church  or  mission.  This  is  true  even 


I HE  NEW  MARRIAGE  LEGISLATION. 


45 

though  the  bishop  or  parish  priest  has  delegated  a priest  to 
witness  the  marriage. 

2.  When  the  parties  married  have  been  baptized  in  some 
other  parish  of  the  diocese,  or  in  some  other  diocese,  the 
notice  of  the  marriage  in  either  case  may  be  sent  directly  to 
the  parish  priest  where  the  parties  were  baptized,  or  to  the 
Ordinary  of  the  home  diocese,42  or  to  the  Ordinary  in  whose 
diocese  the  baptism  took  place.  Thus  the  notice  of  a marriage 
in  Philadelphia  when  the  parties  were  baptized  in  San  Fran- 
cisco, can  be  sent  directly  to  the  parish  priest  in  California 
or  it  may  be  sent  to  the  curia  in  Philadelphia,  or  directly  to 
the  curia  of  San  Francisco. 

V.  i.  Any  priest  who  marries  a party  in  danger  of  death 
is  responsible  for  the  proper  and  accurate  registration  of  the 
marriage. 

2.  When  parties  who  could  not  secure  the  Ordinary  or  par- 
ish priest,  or  a priest  delegated  by  either,  have  entered  the 
married  state,  the  responsibility  of  transmitting  all  the  facts 
of  the  case  for  due  registration  falls  on  the  newly  married 
couple  together  with  the  witnesses. 

JESisbops  anb  Diocesan  S^nobs. 

I.  Our  Ordinaries  and  diocesan  synods  may  not  supple- 
ment the  present  marriage  law  by  rulings  contrary  to  the  pro- 
visions of  the  decree.  They  may,  however,  add  regulations  that 
are  “ praeter  legem,”  as  well  as  specifications  on  points  which 
the  law  leaves  indeterminate.  Ordinaries  and  diocesan  synods 
should  punish  severely  priests  who  through  carelessness  or 
ignorance  have  either  drawn  up  invalid  written  betrothal  con- 
tracts, or  who  have  omitted  the  observance  of  any  positive 
prescription  of  the  present  law  so  as  to  render  the  marriage 
invalid.  If  the  same  priests  have  offended  in  these  essential 
points  frequently,  it  would  seem  advisable  to  forbid  them 
absolutely  to  sign  any  betrothal  contract  or  to  assist  at  any 
marriage.  Lesser  punishments  should  be  given  for  the  trans- 
gression of  any  prescription  that  would  render  the  marriage 


42  Gerinari,  lb. 


46 


A COMMENTARY  ON 


illicit.  The  Ordinaries  and  diocesan  synods  can  oblige  the 
pastor  of  the  groom  to  restore  the  stole-fee  to  the  parish 
priest  of  the  bride,  whenever  the  former,  without  a good  reason 
(“justa  causa”)  performs  the  marriage  ceremony.  This  is 
not  prescribed  in  the  pontifical  law,  but  it  is  not  contrary  to 
it,  hence  could  be  given  as  a punishment  for  violating  num- 
ber V,  v,  of  the  present  decree. 

II.  If  the  Holy  See  does  not  wish  to  determine  what  would 
constitute  a grave  necessity  (V,  iii),  a necessity  (V,  iv), 
and  causa  justa  (V,  v),  it  might  be  advisable  for  our  diocesan 
synods  to  give  an  interpretation  together  with  examples,  which 
would  serve  as  a norm  for  priests,  dealing  with  practical  cases. 
Such  interpretation  should  be  followed  until  a declaration  be 
given  by  the  Holy  See. 

III.  Undoubtedly  difficulties  will  arise  about  stole-fees  in 
cases  not  included  in  the  decree  Ne  temere.  Differences 
between  priests,  unkindly  friction,  perhaps  scandal,  can  be 
prevented  if  the  Ordinaries  and  diocesan  synods,  according  to 
the  peculiar  circumstances  of  each  diocese,  shall  supplement 
the  pontifical  legislation  by  minutely  specifying  the  distribu- 
tion of  stole-fees.  In  such  diocesan  laws  care  must  be  taken 
not  to  determine  anything  even  implicitly  contrary  to  the 
decree  Ne  temere. 


/ftatrfmontal  Stole^tfees. 

I.  As  the  marriage  is  ordinarily  to  be  celebrated  by  the 
parish  priest  of  the  bride,  it  can  be  said  as  a general  rule  that 
he  is  entitled  to  receive  the  stole-fees  of  all  marriages  that  he 
witnesses  or  should  witness. 

II.  If  a parish  priest,  either  without  duly  authorized  per- 
mission, or  in  a case  where  grave  necessity  does  not  exist,  per- 
forms the  marriage  ceremony  for  parties  who  have  not  a 
domicile,  or  a month’s  residence  in  his  parish,  he  is  to  return 
the  stole-fee  to  the  bride’s  pastor.  He  may  send  it  to  the 
groom’s  pastor,  if  a good  reason  (“  causa  justa  ”)  existed 
which  would  have  allowed  the  parish  priest  of  the  groom  to 
witness  the  marriage. 


THE  NEW  MARRIAGE  LEGISLATION. 


47 


III.  If  in  case  of  grave  necessity  any  parish  priest  shall 
have  witnessed  in  his  own  church  or  territory  a marriage 
of  parties  who  have  not  a domicile,  or  a month’s  residence  in 
his  parish,  we  still  think  the  stole-fees  should  be  sent  to  the 
bride’s  pastor,  or  to  the  groom’s  parish  priest,  if  the  latter 
would  have  had  a good  reason  to  perform  the  marriage 
ceremony. 

When  the  grave  necessity  exists,  any  pastor  who  witnesses 
a marriage  in  his  own  church  or  territory  is  not  violating 
prescription  V,  ii  and  iii.  Consequently,  in  virtue  merely  of  the 
present  decree,  he  is  not  obliged  to  send  stole-fees  to  either  the 
pastor  of  the  bride  or  groom.  Our  opinion,  however,  is  based  on 
the  general  principle  that  the  stole-fee  for  marriage  belongs  to 
the  parish  priest.43  While  it  does  not  seem  just  that  the  priest 
who  performs  the  marriage  ceremony  in  case  of  grave  neces- 
sity, should  receive  nothing  of  the  stole-fee  (if  there  be  any 
fee  in  such  a case),  yet  he  cannot  be  considered  the  “ paro- 
chus  contrahentium.”  We  should  say  that  the  parish  priest 
for  such  a case  is  ordinarily  the  pastor  of  the  bride.  If  a 
just  cause  existed  allowing  the  pastor  of  the  groom  to  per- 
form the  marriage  ceremony,  he  may  be  considered  the  parish 
priest  “ in  ordine  ad  emolumenta  stolae.’'  The  new  decree 
does  not  specify  that  a priest  invited  and  delegated  to  witness 
a marriage  should  give  the  stole-fee  to  the  pastor,  yet  very 
probably  he  must  offer  it  to  him.  for  the  same  reason  as  men- 
tioned above. 

IV.  If  the  parish  priest  of  the  groom  witness  the  marriage, 
even  without  a just  cause,  he  may  appropriate  for  himself 
the  stole-fees.  The  reason  of  this  is  that,  although  the  pastor 
violates  the  law  which  requires  that  marriage  be  regularly  cele- 
brated by  the  pastor  of  the  bride  (V,  v)  (to  which,  however,  the 
penalty  of  returning  the  stole-fee  is  not  attached),  he  does  not 
however  violate  the  law  (VII)  which  requires  for  the  licit 
assisting  at  the  marriage  a domicile,  or  a month’s  residence 
of  one  or  other  of  the  contracting  parties.  It  seems  at  first 

43  Romanos  Pontifices,  Concil.  Ill  BaltL  p 227 


48 


A COMMENTARY  ON 


sight  beneath  the  dignity  of  pontifical  or  diocesan  law  to  treat 
in  detail  of  the  question  of  fees,  especially  where  there  is 
question  of  the  administration  of  a sacrament,  or  rather  of  a 
priest  assisting  at  the  administration  thereof ; but  the  framers 
of  the  laws  know  too  well  from  experience  that  ecclesiastical 
legislation  must  put  up  safeguards  against  the  danger  of 
human  weakness  in  its  officials.  To  leave  the  question  of 
stole-fees  unsettled  would  be  to  open  a thoroughfare  where 
the  travel  of  clerics  would  be  uncomfortable,  undignified,  and 
unpriestly. 


Cbose  BttecteD  b£  tbe  H>ecree. 

The  following  persons  are  affected  by  the  decree  in  making 
a formal  engagement  and  in  entering  the  married  state : 

1.  All  Catholics  of  good  standing,  baptized  as  infants  in  the 
Faith. 

2.  All  adults  (never  previously  baptized)  baptized  in  the 
Catholic  Church. 

3.  All  converts  to  the  Catholic  Church  from  any  sect  or 
denomination. 

4.  All  Catholics  baptized  as  infants  but  who  have  fallen 
away  from  the  Church.44 

44  The  decree  clearly  distinguishes  between  those  baptized  in,  or  re- 
ceived into,  the  Catholic  Faith,  and  those  baptized  in  any  sect.  The 
former,  irrespective  of  age  at  the  time  of  baptism,  or  subsequent  relapse 
into  heresy,  schism,  or  infidelity,  continue  to  be  bound  by  the  decree  as  long 
as  they  live.  The  latter  are  regarded  as  the  only  class  of  heretics  ex- 
empted by  the  decree.  This  differs  from  a former  interpretation  (S.  C. 
Apr.  1859)  of  the  Benedictine  declaration  by  which  heretics  included: 

1.  Catholic  baptized  infants  educated  in  and  professing  Protestantism 
before  their  seventh  year. 

2.  Children  brought  up  and  educated  by  indifferent  Protestants,  who 
gave  them  little  or  no  instruction  in  heresy.  The  children  in  consequence 
became  indifferent,  seldom  attending  any  religious  worship. 

3.  Those  who  as  children  fell  into  the  hands  of  heretics  and  joined 
some  sect.  (Gasparri,  II,  n.  977,  p.  173  ed.  1900.) 

If  anything  like  a proximate  calculation  from  all  our  dioceses  could 
be  made  of  the  great  number  of  children  falling  into  the  hands  of  here- 
tics as  defined  by  the  interpretation  of  the  Benedictine  declaration,  a 
provision  to  except  the  aforesaid  classes  might  be  made  for  us.  It  is  not 


THE  NEW  MAR  El  AGE  LEGISLATION. 


49 


5.  All  adults  (never  previously  baptized)  who  were  bap- 
tized in  the  Faith  but  who  have  fallen  away  from  the  Church. 

6.  All  converts  to  the  Catholic  Church  from  any  Protestant 
sect  who  have  relapsed  or  have  lost  all  faith. 

There  will  be  many  of  the  fourth  class  amongst  us.  Bap- 
tized children  falling  into  the  hands  of  Protestants,  growing 
up  as  Protestants,  knowing  nothing  of  the  law  of  the  Catholic 
Church  which  declares  their  marriage  invalid  unless  celebrated 
before  a duly  authorized  priest,  will  be  living  (though  not 
culpably  so)  in  concubinage,  and  not  in  lawful  wedlock. 
Those  of  class  5 and  6 are  refractory  subjects.  No  one  will  de- 
clare that  the  State  has  lost  jurisdiction  over  her  law-breaking 
citizens;  yet  many  will  not  see  that  the  Church  can  bind  her 
sinning  and  relapsed  children.  Baptism  is  not  like  naturali- 
zation. It  does  not  allow  the  one  baptized  to  transfer  his  or 
her  allegiance  from  one  religion  to  another,  or  rather  from  the 
true  religion  to  so-called  religions. 

Many  Protestants  may  think  the  Church  presumptuous  in 
decreeing  their  marriages  valid  or  invalid  accordingly  as  they 
have  or  have  not  complied  with  certain  conditions.  As  the 
Church  cannot  err,  neither  can  she  be  presumptuous.  She 
alone  is  judge  of  the  extent  of  her  power.  Any  one  validly 
baptized  either  in  the  Church  or  among  heretics,  becomes  there- 
by a subject  of  the  Roman  Catholic  Church.  The  present 
marriage  law  does  not  bind  any  one  baptized  in  heresy  or 
schism,  provided  they  have  never  entered  the  Catholic  Church. 
A question,  however,  can  arise  as  to  whether  in  large  Pro- 
testant communities  it  may  be  prudent  to  publish  merely  the 
law,  as  many  of  our  Catholic  papers  will  do ; the  reason,  power, 
and  authority  of  the  Church  should  be  published  with  it. 
We  do  not  fear  the  truth ; we  do  not  wish  to  conceal  the  truth ; 
but  we  should  present  the  whole  truth,  and  in  such  a way  that 
our  Protestant  brethren  cannot  refute  it 

the  intention  certainly  of  the  Church,  nor  of  the  saintly  Pius  X,  to 
have  uniformity  of  law  for  its  own  sake,  but  rather  willingly  to  make 
exceptions  when  it  can  be  shown  that  exceptions  in  certain  localities  will 
work  for  the  greater  good  and  salvation  of  souls. 


50 


A COMMENTARY  ON 


Careful  note  is  to  be  made  that  the  decree  is  dealing 
with  the  impediment  of  clandestinity,  hence  those  of  Nos. 
4,  5 and  6 are  considered  subjects  of  the  Church  for 
this  impediment.  For  all  other  impediments,  those  of  4, 
5 and  6 are  to  be  treated  as  apostates  and  heretics  are 
now  dealt  with.  Hence  if  a Catholic  of  good  standing  should 
marry  a Protestant  classified  under  Nos.  4,  5,  6,  certainly  a dis- 
pensation from  the  impediment  “ mixtae  religionis  ” is  to  be 
obtained. 

Another  difficulty  that  will  confront  us  is  the  following: 
Many  Protestants  of  the  classes  4,  5,  6,  will  marry  non- 
baptized  parties.  It  is  certain  that  the  marriage  of  such  apos- 
tates and  non-baptized  parties  will  be  invalid.  In  case  of  a 
Protestant  baptized  in  some  sect  (but  who  has  never  entered 
the  Catholic  Church)  marrying  a non-baptized  person,  the 
marriage  is  invalid,  but  not  because  of  the  impediment  of 
clandestinity,  for  the  non-baptized  party  is  not  a subject  of 
the  decree  and  the  “ Ne  Temere  ” clearly  defines  that  the 
other  party  is  not  included  among  those  whom  the  new 
legislation  affects.  The  marriage  is  invalid  on  account 
of  the  “ impedimentum  disparitatis  cultus.”  A case  for 
moralists  to  settle  is : what  course  is  the  priest  to  follow  when 
such  Protestants  or  such  Catholics,  as  you  may  wish  to  call 
them,  mentioned  in  Nos.  4,  5,  6,  present  themselves  to  be 
married  ? They  may  have  no  intention  of  returning  to  the 
Church,  yet  may  wish  to  be  married  by  a priest  because  they 
know  that  in  the  eyes  of  the  Church  and  before  God  any  at- 
tempt at  marriage  before  state  officials  is  no  marriage  at  all. 

/DMEefc  /J&arda^es. 

Our  bishops  will  have  a serious  difficulty  in  the  question  of 
mixed  marriages,  which  are  on  the  increase  from  year  to  year. 
In  some  localities  where  Catholic  belief  is  sound  and  vigorous, 
and  the  influence  of  Catholic  society  dominant,  mixed  mar- 
riages have  led  to  many  sincere  conversions,  but  in  the  greater 
number  of  cities,  especially  large  cities,  mixed  marriages  have 
proved  to  be  a curse  for  the  community  and  for  individuals. 


THE  NEW  MARRIAGE  LEGISLATION. 


5 


The  Holy  See  in  legislating  for  the  Universal  Church  cannot 
make  the  general  law  applicable  to  the  particular  needs  of  one 
nation  or  people.  The  Church  in  her  general  disciplinary 
regulations  must  seek  the  “ bonum  commune  ” of  the  Uni- 
versal Church.  The  “ bonum  commune,”  however,  need  not 
be  a “ bonum  ” for  every  individual  nor  even  for  every  people 
or  nation.  Thus,  in  the  present  instance,  the  general  law 
exacts  under  pain  of  nullity  that  the  marriage  of  a Catholic 
to  a Protestant  party  (schismatic  or  heretic)  must  take  place 
before  the  Ordinary,  or  a duly  authorized  priest,  and  wit- 
nesses. But  the  general  law  makes  wise  provision  for  the 
validity  of  mixed  marriages  and  marriages  of  schismatics  and 
heretics  among  themselves  in  particular  countries  or  localities, 
even  when  celebrated  before  ministers  or  state  officials : first, 
in  all  places  that  now  possess  a dispensation  from  the  im- 
pediment of  clandestinity,  and,  secondly,  whenever  conditions, 
in  the  judgment  of  the  Holy  See,  will  warrant  such  an  ex- 
ception for  the  future  (“  nisi  pro  aliquo  particulari  loco  aut 
regione  aliter  a S.  Sede  sit  statutum”).  Cardinal  Gennari 
again  assures  us  that  “ nisi  pro  aliquo  ” etc.,  does  not  change 
or  abrogate  any  existing  dispensations  from  the  impediment 
of  clandestinity : hence,  owing  to  the  decree  “ Provida  ” 
granted  to  Germany,  18  January,  1906,  all  marriages  of  Pro- 
testants among  themselves,  and  of  Catholics  to  Protestants 
(schismatics  or  heretics)  before  ministers  or  State  officials 
in  the  whole  of  the  German  Empire,  will  be  valid  after 
Easter,  1908. 

At  present  the  writer  cannot  ascertain  whether  we  have  pro- 
portionately a greater  number  of  mixed  marriages  than  Ger- 
many, but,  considering  the  loyal  and  living  faith  of  American 
Catholics,  it  is  certain  that  we  have  a number  out  of  all  due 
proportion.  It  is  certain  too  that  at  least  an  experiment  of 
other  measures  must  be  adopted  in  the  hope  of  reducing  the 
yearly  increase  of  mixed  marriages.  The  part  of  the  decree 
“ Ne  Temere  ” that  deals  with  mixed  marriages  brings  into 
bold  relief  the  doctrine  of  the  Catholic  Church  and  of  Christ, 
that  the  origin  and  fountain-source  of  religious  and  civil 


52 


A COMMENTARY  ON 


Christian  society  is  a sacramental  one — the  great  sacrament  of 
Matrimony — and  not  a mere  contract  between  individuals,  de- 
pendent on  the  whims  and  fancies  of  those  who  make  it;  not 
a contract  that  the  State  can  ratify  or  annul,  but  a contract 
that  the  hand  of  God  Himself  has  sealed  and  signed — a con- 
tract on  which  He  has  written,  “ What  therefore  God  hath 
joined  together  let  not  man  put  asunder.”  45  The  Church  in 
terms  that  cannot  be  mistaken  announces  to  the  world:  “I, 
and  I alone  know  the  power  and  authority  that  Christ  com- 
municated to  me,  and  I now  reiterate  the  declaration  to  the 
world  that  among  Christians  there  is  no  distinction  between 
the  marriage  contract  and  the  Sacrament  of  Matrimony, 
and  I declare  that  I alone  can  impose  the  conditions  under 
which  Christians  can  or  can  not  receive  this  Sacrament.  I 
declare  that  the  State  can  no  more  administer  the  Sacrament  of 
Matrimony,  or  impose  conditions  for  its  administration,  than 
it  can  administer  any  of  the  other  Sacraments  entrusted  to  my 
keeping.4®  I now  decree  for  the  Universal  Church  a certain 
form  absolutely  essential  which  will  give  every  marriage  pub- 
licity. I decree  that  this  form  is  necessary  for  Catholics 
among  themselves,  and  for  Catholics  who  marry  non-Catho- 
lics,  whether  the  latter  are  baptized  or  non-baptized.  I de- 
cree every  other  form,  whether  approved  by  the  State  or  by 
any  schismatical  or  heretical  sect,  to  be  invalid.  I further 
declare  that  every  such  form  is  as  worthless  as  a form  in- 
vented by  the  parties  themselves,  and  as  useless  as  if  no  form 
whatever  were  observed.  By  Catholics  I mean  every  one  who 
has  ever  been  received  into  the  Catholic  Church.  I declare 
that  I have  the  God-given  power  to  bind  refractory  subjects, 
and  all  who  have  ever  been  validly  baptized  in  any  form  or  ex- 
pression of  Christianity.  I now  decree  that  all  fallen-away 
Catholics,  irrespective  of  time,  condition,  or  place,  cannot  re- 
ceive the  Sacrament  of  Matrimony,  and,  consequently,  cannot 

Matt.  19:  6;  Mark  10:  9. 

*•  The  State  may  impose  conditions  for  civil  recognition  of  matrimony 
4nd  may  legislate  on  whatever  concerns  the  purely  civil  effects  of  marriage 


THE  NEW  MARRIAGE  LEGISLATION. 


53 

enter  into  any  marriage  contract,  unless  the  form  and  ritual 
that  I have  prescribed  be  observed.  And  further,  I declare 
and  decree  that  I do  not  require  that  this  form  and  ritual  be 
observed  by  those  who  have  never  been  baptized  in,  or  received 
into  the  Catholic  Church.  I declare  further,  that  while  this 
law  extends  to  the  entire  world,  I am  willing  to  make  excep- 
tions, if,  owing  to  frail  human  nature  and  the  peculiar  circum- 
stances in  Protestant  countries,  it  can  be  shown  that  such  ex 
ceptions  will  work  for  the  greater  good  of  souls,  for  a 1 more 
expeditious  reconciliation  of  penitents/  and  for  * public  peace 
and  tranquillity/  ” 47 

It  is  certain  that  the  Church’s  position  is  unassailable,  and 
in  this  momentous  question,  the  very  foundation  stone  of  so- 
ciety, she  shows  the  greatest  prudence  and  love  for  her  erring 
children.  All  children  cannot  be  treated  alike.  Some  will  be 
won  by  kindness,  others  must  be  treated  with  severity.  The 
purpose  and  commission  of  the  Church  is  to  win  all  If 
leniency  and  dispensations  will  enable  bishops  and  priests  to 
reclaim  those  living  in  valid,  but  sinfully  contracted  marriage 
then  leniency  and  dispensations  will  be  the  Church’s  means. 
The  Church  knows  that  as  long  as  Catholic  young  men  and 
women  associate  with  Protestant  young  men  and  women, 
we  shall  have  mixed  marriages,  and  unfortunately  many  of 
these  will  be  celebrated  before  ministers  and  State  officials. 
Considering  the  great  number  that  take  place,  and  will  take 
place,  likewise  weighing  every  consideration  bearing  on  the 
case,  would  it  be  better  for  Catholicism  in  the  United  States 
to  have  marriages  before  State  officials  recognized  as  valid? 
If  an  affirmative  reply  be  made  by  our  Bishops,  it  will  rest 
with  them  to  ask  for  the  extension  to  the  United  States 
either  of  the  decree  “ Provida,”  or  a modification  of  the 
“ Provida,”  best  suited  to  our  conditions,  and  it  will  rest 
with  the  Holy  See  to  decide  whether  or  not  the  same  will 
be  granted. 

Unless  this  extension  be  made,  after  Easter  of  1008,  the 


47  Provida. 


54 


A COMMENTARY  ON 


marriage  of  Catholics  with  schismatics,  heretics,  or  non-bap- 
tized  persons,  before  ministers  and  State  officials,  will  certainly 
be  invalid  in  all  parts  of  the  United  States,  without  any 
exception  whatever,  even  though  the  dispensation  “ mixtae 
religionis  ” or  “ disparitatis  cultus  ” had  been  obtained.  We 
have  said  “ without  any  exception  whatever  ” advisedly,  and 
we  wish  to  emphasize  this  point,  because  the  only  doubt  that 
existed  for  us,  was  whether  the  Benedictine  Declaration  ap- 
plicable to  certain  districts  of  the  United  States,  was  really  a 
dispensation.  This  doubt  has  been  removed  by  a cabled  an- 
existed  for  us,  was  whether  the  Benedictine  Declaration,  ap- 
is now  without  force.  Accordingly  the  provinces  of  New 
Orleans,  San  Francisco,  with  the  State  of  Utah,  the  diocese 
of  Vincennes,  the  city  of  St.  Louis,  the  places  of  the  arch- 
diocese known  as  St.  Genevieve,  St.  Ferdinand  and  St.  Charles, 
also  Kaskasia,  Cahokia,  French  Village,  Prairie  du  Rocher, 
East  St.  Louis.  Centreville  Station,  and  other  places  and 
countries  where  the  Benedictine  Declaration  was  promulgated, 
are  bound  by  the  new  law  precisely  in  the  same  manner  as  the 
whole  Catholic  world,  Germany  alone  excepted. 

Should  our  Bishops  decide  to  petition  the  Holy  See  for  the 
extension  of  the  “ Provida  ” to  the  Lmited  States,  there  are 
two  doubts  which,  we  think,  should  be  settled.  In  order  to 
remove  all  uncertainty  in  their  regard,  an  interpretation 
might  be  asked  from  the  Holy  See,  unless  the  German  Bishops 
have  already  presented  these  dubia, 

I.  As  clandestine  mixed  marriages  between  Catholics  and 
Protestants  (or  among  heretics,  schismatics,  or  Catholics  with 
non-baptized  parties,  if  the  dispensation  “ disparitatis  cultus  ” 
has  been  obtained)  or  of  Protestants  among  themselves,  will 
be  valid  in  Germany  after  Easter,  1908,  it  may  be  asked  if  the 
same  will  be  true  of  clandestine  betrothals?  It  would  seem 
that  the  “ Ne  Temere  ” makes  provision  that  clandestine  be- 
trothal will  be  valid  for  the  aforesaid  parties.  The  decree 
reads : “ The  same  laws  are  binding  also  on  the  same  Catho- 
lics as  above,  if  they  contract  betrothal  or  marriage  with  non- 
Catholics,  baptized  or  non-baptized,  even  after  a dispensation 


THE  NEW  MARRIAGE  LEGISLATION. 


55 

has  been  obtained  from  the  impediment  ‘ mixtae  religionis  * or 
‘ dispar itatis  cultus/  nisi  pro  aliquo  particulari  loco  aut  regione 
aliter  a S.  Sede  sit  statutum  .”  The  words  “ nisi  aliter  ” cer- 
tainly mean  that  it  has  been  decreed  otherwise  by  the  Holy 
See  for  the  above-mentioned  clandestine  marriages  in  Ger- 
many. But  the  doubt  here  raised  is : Do  the  words  also 
mean  that  clandestine  and  unwritten  betrothal  is  valid  in  case 
of  the  above-mentioned  classes  only,  in  Germany? 

II.  What  is  the  meaning  of  a non-Catholic  (heretic  or  schis- 
matic) ? When  the  “ Provida  ” was  granted  to  Germany  (18 
January,  1906),  the  definition  of  non-Catholic  (heretic  or 
schismatic)  was  not  the  one  given  by  the  decree  “ Ne  Temere.” 
Does  the  term  non-Catholic  as  defined  by  the  “ Ne  Temere  ” 
apply  to  the  “ Provida?” 

We  have  thought  it  advisable  to  give  the  “ Provida  ” by 
way  of  Appendix. 


56 


A COMMENTAR  V ON 


Appendix. 

~ Jlrntriha.” 
apostolic  JSull 

®H  wtrtrh  all  <ftall»altr  fSarrtagrn  tn  (Krnnanti  arr  &ubtcrlri>  tn  tljr  Srtrpr  " {IS am* 

iHarrta^rn  anb  thntjr  of  {Irntratants  ExemjJtrh. 

PIUS 

Bishop  and  Servant  of  the  Servants  of  God. 

For  a perpetual  memory.  t 

By  wise  and  provident  care  Holy  Church,  in  promulgating 
her  laws,  has  in  every  age  regulated  those  things  which  per- 
tain to  the  stability  and  sanctity  of  Christian  marriage. 
Among  these  laws  that  one  by  which  the  holy  Tridentine 
Synod  strove  to  abolish  and  extirpate  from  Christian  people 
the  evil  of  clandestine  marriage,  holds  an  eminent  place.  It 
is  acknowledged  by  all  that  great  utility  has  resulted,  and  still 
results,  from  this  decree  in  favor  of  the  whole  Christian  world. 
Nevertheless,  as  happens  in  all  human  affairs,  it  has  occurred 
in  places,  especially  in  the  German  Empire,  that  certain  grave 
and  inconvenient  results  were  connected  with  the  aforesaid 
law,  due  to  the  lamentable  and  widespread  division  in  religion, 
and  the  daily  increasing  intercourse  of  Catholics  with  heretics. 
Namely,  since  it  was  the  intention  of  the  Fathers  of  the  Coun- 
cil that  the  decree  Tametsi  would  not  have  binding  force  until 
it  had  been  officially  promulgated  in  each  parish ; since,  con- 
cerning many  places,  it  is  doubtful  whether  this  promulgation 
has  been  made;  since  it  is  frequently  uncertain  whether  the 
law  of  the  Council  is  likewise  obligatory  upon  non-Catholics 
dwelling  in  this  or  that  place:  the  greatest  diversity  and  dissimi- 
larity of  law  as  a result  has  arisen  in  many  localities  of  the 
German  Empire, — wherefore  very  many  and  difficult  ques- 
tions have  sprung  up  which  have  frequently  caused  perplex- 
ity in  the  minds  of  judges,  a certain  irreverence  for  law 
among  the  faithful,  and  perpetual  quarrels  and  incriminations 
among  non-Catholics.  The  Holy  See  has  not  omitted  to  pub 


THE  NEW  MARRIAGE  LEGISLATION. 


.37 


lish  for  some  dioceses  of  Germany  timely  declarations  and  or- 
dinances, which,  however,  have  not  abolished  discrepancies 
of  law. 

These  have  moved  very  many  German  Bishops  to  approach 
the  Holy  See  again  and  again,  unanimously  seeking  a remedy 
for  this  condition.  Leo  XIII,  listening  kindly  to  these  peti 
tions,  ordered  that  the  wishes  of  the  other  prelates  of  Ger- 
many be  consulted.  These  having  been  ascertained  and  the  whole 
matter  having  been  discussed  in  the  Supreme  Congregation 
of  the  Holy  Roman  and  Universal  Inquisition,  we  have  under- 
stood it  to  be  our  duty  to  apply  an  efficacious  and  universal 
remedy  to  the  present  condition.  Therefore,  from  certain 
knowledge  and  plentitude  of  our  power,  in  order  that  we 
may  preserve  the  sanctity  and  stability  of  matrimony,  the  unity 
and  constancy  of  discipline,  the  certitude  of  law,  a more 
expeditious  reconciliation  of  penitents  and  finally  the  public 
peace  and  tranquillity, >We  declare: 

I.  Although  in  very  many  places  in  the  whole  German  Em- 
pire of  to-day  the  decree  Tametsi  of  the  Council  of  Trent 
has  certainly  not  yet  been  promulgated  and  introduced  either 
by  express  publication  or  by  proper  observance,  nevertheless, 
from  Easter  Day,  the  15th  day  of  April  of  this  year  1906. 
it  binds  all  Catholics,  even  those  not  hitherto  bound  by  the 
Tridentine  law,  so  that  they  may  not  contract  valid  matrimony 
among  themselves,  save  in  the  presence  of  the  parish  priest 
and  two  or  three  witnesses. 

II.  Mixed  marriages  which  are  contracted  by  Catholics  with 
heretics  or  schismatics  have  been  gravely  prohibited,  and  re 
main  so  unless  a grave  canonical  cause  be  present,  in  which 
case  proper  assurances  are  to  be  given  formally  and  fully  by 
both  parties  and  a dispensation  of  the  impediment  “ mixtae 
religionis  ” should  be  obtained  for  the  Catholic  party.  The 
dispensation  having  been  obtained,  these  marriages  should  by 
all  means  be  celebrated  according  to  the  prescriptions  of  the 
Church,  before  the  parish  priest  and  two  or  three  witnesses : 
otherwise  that  they  sin  gravely  who  contract  matrimony  be- 
fore a non-Catholic  minister,  or  even  before  a civil  magistrate. 


A COMMENTARY  ON 


58 

or  in  any  other  secret  manner;  nay  more,  if  any  Catholic  seek 
or  allow  the  service  of  a non-Catholic  minister  in  the  celebra- 
tion of  such  a mixed  marriage,  he  commits  another  sin  and  is 
subject  to  canonical  censure. 

We  will,  nevertheless,  and  expressly  declare,  define,  and  de- 
cree as  valid  the  mixed  marriages  already  contracted  without 
the  Tridentine  form,  or  which  (God  forbid!)  may  be  con- 
tracted without  aforesaid  form  in  any  province  or  place 
whatsoever  of  the  German  Empire,  even  in  those  localities 
where  up  to  the  present  (according  to  the  decisions  of  the 
Roman  Congregations)  the  Tridentine  law  was  certainly  pro- 
mulgated, provided  there  be  no  other  canonical  impediment, 
and  further,  that  the  sentence  of  nullity  has  not  been  legiti- 
mately pronounced  before  the  Feast  of  Easter  of  this  year, 
and  further,  provided  the  mutual  consent  of  the  man  and  wife 
has  persevered  to  the  aforesaid  day. 

III.  That  a safe  rule  may  be  at  hand  for  all  ecclesiastical 
judges,  We  declare,  determine,  and  decree  the  same  thing 
under  the  same  conditions  and  restrictions  concerning  the 
marriages  of  non-Catholics,  whether  heretics  or  schismatics, 
contracted  or  to  be  contracted  in  the  future  among  themselves 
in  the  above-mentioned  provinces  and  places,  even  when  they 
have  not  observed  the  Tridentine  form,  so  that  if  one  or  both 
of  the  married  parties  (non-Catholics)  should  be  converted 
to  the  Catholic  Faith,  or  a controversy  should  arise  in  the 
ecclesiastical  courts  concerning  the  validity  of  the  marriage 
of  the  two  non-Catholics  in  connexion  with  a question  con- 
cerning the  validity  of  the  marriage  contracted,  or  to  be  con- 
tracted by  some  Catholic,  these  same  marriages,  all  else  being 
equal,  are  likewise  to  be  considered  valid. 

IV.  Lastly,  that  this  our  decree  may  come  to  the  knowledge 
of  the  public,  we  command  the  Ordinaries  of  the  German 
Empire  to  communicate  it  before  Easter  of  this  current  year 
to  the  clergy  and  to  the  faithful  through  diocesan  periodicals 
and  other  more  convenient  mediums. 

Given  at  Rome  in  St.  Peter’s,  18  January,  1906,  in  the  third 
year  of  our  pontificate. 


Pius  PP.  X. 


THE  NEW  MARRIAGE  LEGISLATION. 


59 


B«Ua  Ajuiutulira 

^ua  Gmnla  /toatrtmoma  CCatbolica,  in  Germania,  JDecreto  “Gamete!  ” 
Subiiciuntur ; JEjcipiuntur  Dero  /Ibatrimonia  /BMjta  et 
fl>rotestantium 

Pius  Episcopus  Servus  Servorum  Dei. 

AD  PERPETUAM  REI  MEMORIAM. 

Provida  sapientique  cura  quavis  aetate  Sancta  Ecclesia 
legibus  latis  ea  disposuit  quae  ad  christianorum  connubiorum 
firmitatem  et  sanctitatem  pertinerent.  In  quibus  legibus  ilia 
eminentem  locum  habet,  qua  Sancta  Synodus  Tridentina 1 
clandestinorum  matrimoniorum  pestem  abolere  et  ex  populo 
christiano  extirpare  contendit.  Magnam  ex  hoc  Tridentino 
decreto  utilitatem  in  universam  rempublicam  christianam  pro- 
manasse  et  hodie  quoque  promanare  apud  omnes  in  confesso 
est.  Nihilominus,  ut  sunt  res  humanae,  contigit  alicubi,  et 
praesertim  in  Imperio  Germanico,  propter  lamentabilem  maxi- 
mamque  in  religione  divisionem  et  catholicorum  cum  haereticis 
permixtionem  in  dies  augescentem,  ut  cum  praedictae  legis  ob- 
servantia  incommoda  etiam  quaedam  nec  levia  coniungerentur. 
Nimirum  cum  ex  voluntate  Concilii  caput  Tametsi  non  antea 
in  singulis  paroeciis  vim  obligandi  habere  coepit  quam  in  illis 
rite  esset  promulgatum,  et  cum  haec  ipsa  promulgatio  an  facta 
sit  multis  in  locis  dubitetur,  incertum  quoque  non  raro  sit  an 
lex  Concilii  obliget  etiam  acatholicos  uno  above  in  loco  mo- 
rantes,  maxima  inde  ac  molestissima  in  plurimis  Imperii  Ger- 
manici  locis  nata  est  iuris  diversitas  et  dissimilitudo  plu- 
rimaeque  et  spinosae  exortae  sunt  quaestiones  quae  in  iudicibus 
quidem  persaepe  perplexitatem,  in  populo  fideli  quamdam  legis 
irreverentiam,  in  acatholicis  perpetuas  cierent  querelas  et  cri- 
minationes.  Non  omisit  quidem  Sedes  Apostolica  pro  nonnullis 
Germaniae  dioecesibus  opportunas  edere  dispositiones  et  de- 
clarationes,  quae  tamen  iuris  discrepantias  minime  sustulerunt. 

Atque  haec  moverunt  complures  Germaniae  episcopos  ut  ite- 

1 Sess.  xxiv,  cap.  I,  De  reform,  matr. 


6o 


A COMMENTARY  ON 


rum  iterumque  Sedem  Apostolicam  ad  i rent  communibus  pre- 
cibus  huic  rerum  conditioni  remedium  petentes.  Quorum 
preces  Decessor  Noster  f.  r.  Leo  XIII  benigne  excipiens  prae- 
cepit  ut  ceterorum  quoque  Germaniae  Praesulum  vota  exquire- 
rentur.  Quibus  acceptis  et  toto  negotio  in  Suprema  Con- 
gregatione  Sacrae  Romanae  et  Universalis  Inquisitionis  mature 
discusso,  Nostrum  esse  officium  intelleximus  praesenti  reruni 
statui  efficax  et  universale  levamen  afferre.  Itaque  ex  certa 
scientia  et  plenitudine  Nostrae  potestatis,  ut  consulamus  sanc- 
titati  firmitatique  matrimonii,  disciplinae  unitati  et  constantiae. 
certitudini  iuris,  faciliori  reconciliationi  poepitentium,  ipsi 
quoque  paci  et  tranquillitati  publicae,  declaramus,  decernimus 
ac  mandamus: 

I.  In  universo  hodierno  Imperio  Germaniae  caput  Tametsi 
Concilii  Tridentini  quamvis  in  pluribus  locis,  sive  per  expres- 
sam  publicationem,  sive  per  legitimam  observantiam,  nondum 
fuerit  certo  promulgatum  et  inductum,  tamen  inde  a die  festo 
Paschae  (id  est  a die  decima  quinta  Aprilis)  huius  anni  mil- 
lesimi  nongentesimi  sexti,  omnes  catholicos,  etiam  hucusque 
immunes  a forma  Tridentina  servanda  ita  adstringat  ut  inter 
se  non  aliter  quam  coram  parocho  et  duobus  vel  tribus  testibus 
validum  matrimonium  celebrare  possint. 

II.  Matrimonia  mixta  quae  a catholicis  cum  haereticis  vel 
schismaticis  contrahuntur,  graviter  sunt  manentque  prohibita, 
nisi  accedente  iusta  gravique  causa  canonica,  datis  integre,  for- 
miter,  utrimque  legitimis  cautionibus.  per  partem  catholicam 
dispensatio  super  impedimento  mixtae  religionis  rite  fuerit  ob- 
tenta.  Quae  quidem  matrimonia,  dispensatione  licet  impe- 
trata,  omnino  in  facie  Ecclesiae  coram  parocho  ac  duobus  vel 
tribus  testibus  celebranda  sunt,  adeo  ut  graviter  delinquant 
qui  coram  ministro  acatholico  vel  coram  solo  civili  magistratu 
vel  alio  quolibet  modo  clandestino  contrahunt.  Imo  si  qui 
catholici  in  matrimoniis  istis  mixtis  celebrandis  ministri  aca- 
tholici  operam  exquirunt  vel  admittunt.  aliud  patrant  delictum 
et  canonicis  censuris  subiacent. 

Nihilominus  matrimonia  mixta  in  quibusvis  Imperii  Ger- 
manici  provinciis  et  locis,  etiam  in  iis  quae  iuxta  Romanarum 


THE  NEW  MARRIAGE  LEGISLATION.  5j 

Congregationum  decisiones  vi  irritanti  capitis  Tametsi  certo 
hucusque  subjecta  fuerunt,  non  servata  forma  Tridentina  iam 
contracta  vel  (quod  Deus  avertat)  in  posterum  contrahenda, 
dummodo  nec  aliud  obstet  canonicum  impedimentum,  nec  sen- 
tentia  nullitatis  propter  impedimentum  clandestinitatis  ante 
diem  festum  Paschae  huius  anni  legitime  lata  fuerit,  et  mutuus 
coniugum  consensus  usque  ad  dictam  diem  perseveraverit,  pro 
validis  omnino  haberi  volumus,  idque  expresse  declaramus,  de- 
finimus  atque  decemimus. 

III.  Ut  autem  iudicibus  ecclesiasticis  tuta  norma  praesto  sit, 
hoc  idem  iisdemque  sub  conditionibus  et  restrictionibus  decla- 
ramus, statuimus  ac  decernimus  de  matrimoniis  acatholicorum, 
give  haereticorum  sive  schismaticorum,  inter  se  in  iisdem  regio- 
nibus  non  servata  forma  Tridentina  hucusque  contractis  vel  in 
posterum  contrahendis ; ita  ut  si  alter  vel  uterque  acatholicorum 
coniugum  ad  fidem  catholicam  convertatur,  vel  in  foro  ecclesia- 
stico  controversia  incidat  de  validitate  matrimonii  duorum  aca- 
tholicorum cum  quaestione  validitatis  matrimonii  ab  aliquo  ca- 
tholico  contracti  vel  contrahendi  connexa,  eadem  matrimonia, 
ceteris  paribus,  pro  omnino  validis  pariter  habenda  sint. 

IV.  Ut  demum  Decretum  hoc  Nostrum  ad  publicam  noti- 
tiam  perveniat,  praecipimus  Imperii  Germanici  Ordinariis  ut 
illud  per  ephemerides  dioecesanas  aliosque  opportuniores 
modos  ante  diem  Paschae  anni  currentis  cum  clero  populoque 
fideli  communicent. 

Datum  Romae  apud  S.  Petrum  die  xviii  Januarii  mdccccvi, 
Pontificatus  Nostri  anno  tertio. 


Pius  PP.  X. 


62 


A COMMENTARY  ON 


3Ujr  Nrm  fQarriar^  Saw  for  ©ur  Jfeoplr. 

TIQbat  Gbeg  Sboulb  Itnow  Bbout  Ht. 

Engagements  and  Marriages  after  Easter,  1908. 

An  Abstract  of  the  New  Law  for  the  People. 

engagements. 

1.  Every  matrimonial  engagement  after  Easter  must  be 
in  writing,  although  there  is  no  necessity  nor  obligation  to 
enter  into  formal  engagement  before  marriage. 

2.  In  the  eyes  of  the  Church  and  before  God,  private  be- 
trothal after  Easter  between  Catholic  parties,  or  between 
fallen-away  Catholics,  begets  no  matrimonial  obligation  what- 
ever, because  the  Church  decrees  that  every  prenuptial  contract 
is  void  unless  it  is  written  and  duly  attested. 

3.  Parties  wishing  to  become  engaged  must  sign  the  pre- 
nuptial contract,  and  have  the  bishop  or  their  pastor  witness 
it.  In  the  absence  of  the  bishop  or  duly  authorized  priest,  two 
witnesses  must  sign  the  engagement.  If  one  or  both  of  those 
to  be  engaged  cannot  write,  this  should  be  noted,  and  three  lay- 
witnesses  must  sign  the  engagement  in  the  absence  of  the 
bishop  or  the  parish  priest. 

4.  These  engagements  should  be  encouraged.  If  made 
some  months  before  marriage,  they  will  help  to  stop  hasty  alli- 
ances which  are  the  cause  of  so  many  divorces  outside  the 
Church  and  of  so  many  unhappy  marriages  among  Catholics. 

5.  This  written  contract  would  furnish  good  grounds  in  our 
civil  courts  for  breach  of  promise  suit. 

6.  Protestants  and  all  who  have  never  been  baptized  in  the 
Catholic  faith  are  not  subjects  of  this  law,  hence  their  private 
contracts  bind,  for  the  simple  reason  that  the  Church  has  not 
made  these  the  conditions  under  which  they  must  enter  into  an 
engagement. 

7.  All  fallen-away  Catholics,  whether  they  have  become  Pro- 
testants or  infidels,  are  bound  by  the  law.  The  Church,  like 
the  State,  can  bind  her  refractory  subjects. 


THE  NEW  MARRIAGE  LEGISLATION. 


63 


MARRIAGE. 

1.  Every  Bishop  (or  Vicar  General  or  administrator  of  a 
diocese)  can  validly  marry  in  his  own  diocese  any  parties,  ir- 
respective of  the  country  or  place  whence  they  come  The 
bishop  can  delegate  any  priest  to  do  the  same. 

2.  Bishops  or  priests  may  not  assist  at  marriages  until  they 
have  assumed  office. 

3.  There  is  no  marriage  at  all,  if  the  priest  be  compelled  to 
witness  it.  There  is  no  marriage  if  the  priest  does  not  ask 
and  receive  the  consent  of  the  parties. 

4.  The  authority  which  the  bishop  has  in  his  diocese,  the 
parish  priest  has  in  his  parish. 

5.  The  bishop  outside  his  diocese,  and  the  pastor  outside  the 
limits  of  his  parish,  cannot  validly  marry  their  own  or  other 
subjects  without  due  authorization. 

6.  Marriage  before  a priest  who  is  suspended  or  excom- 
municated by  name,  will  be  no  marriage  at  all. 

7.  Marriage  of  all  Catholics  (both  parties  Catholics)  be 
fore  a minister  or  civil  magistrate  will  be  no  marriage  at  all. 

8.  Marriage  of  all  fallen-away  Catholics  (who  have  become 
Protestants  or  infidels)  before  a minister  or  civil  magistrate 
will  be  no  marriage  at  all. 

9.  Marriage  of  a Catholic  to  a non-baptized  person  is 
never  a real  marriage  unless  the  Church  grants  a dispensa- 
tion. Such  a marriage  before  a minister  or  a Justice  of  the 
Peace  is  no  marriage  at  all  for  two  reasons. 

10.  Marriage  of  a Catholic  to  a Protestant  (one  never  bap- 
tized in  the  Catholic  Church)  before  a minister  or  civil  magis- 
trate will  be  no  marriage  at  all,  unless  the  Holy  See  makes  a 
special  law  for  the  United  States. 

11.  Marriage  of  a Protestant  to  a Protestant  (provided  they 
were  never  baptized  in  the  Catholic  Church)  is  valid. 

12.  Marriage  of  a Protestant  (baptized)  to  a non-baptized 
party  is  no  marriage  at  all. 

13.  Marriage  of  a non-baptized  man  to  a non-baptized  wo- 
man is  valid  as  a life-long  contract.  These  parties  do  not 
receive,  however,  the  Sacrament  of  Matrimony. 


64  THE  new  marriage  legislation. 

14.  There  will  be  no  marriage  at  all  unless  there  be  two 
witnesses — one  witness  with  the  priest  will  not  suffice. 

15.  Bishops  or  priests  should  not  witness  marriages  until 
they  are  morally  certain  that  the  parties  to  be  married  are 
free  to  enter  the  matrimonial  state,  hence  as  far  as  possible 
dispensation  from  the  publication  of  banns  should  not  be 
sought. 

16.  For  the  lawful  celebration  of  a marriage,  one  or 
other  of  the  contracting  parties  should  have  a domicile  or  live 
for  a month  in  the  parish  where  they  are  to  be  married.  This 
condition  is  not,  however,  essential  for* the  validity  of  a 
marriage. 

17.  Marriages  of  persons  without  fixed  abode  should  be 
referred  to  the  bishop  before  the  ceremony  takes  place. 

18.  Marriage  should  take  place  in  the  parish  church  of 
• the  bride,  unless  there  be  good  reason  to  go  to  the  pastor  of 

the  groom. 

19.  There  are  new  rules  to  be  observed  by  the  priest  for  the 
the  registration  of  marriages.  When  contracting  parties  are 
to  be  married  in  a church  where  they  were  not  baptized,  they 
should  before  marriage  secure  their  baptismal  certificates. 

20.  Marriage  entered  into  when  there  is  danger  of  death, 
can  be  witnessed  by  any  priest  with  two  witnesses,  provided 
there  is  not  time  to  reach  the  bishop,  parish  priest,  or  priest 
appointed  by  either  of  these. 

21.  If  for  an  entire  month,  parties  cannot  secure  bishop, 
parish  priest,  or  any  priest  appointed  by  either  of  these,  they 
may  in  the  presence  of  two  witnesses  (there  is  no  marriage 
if  there  be  not  two  witnesses)  declare  their  consent  to  marry. 
They  are  then  in  the  eyes  of  the  Church  and  before  God 
married.  As  soon  after  the  marriage  as  possible  they  should 
send  their  names  to  the  parish  priest  for  registration  and 
do  whatever  is  required  to  have  their  marriage  legally  recog- 
nized by  the  State. 


*aamm at 


mm 


DATE  DUE 


MAR  26 

[9 \ 

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Cl  V /S' 


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